Monday, October 19, 2015
Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948.
For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC). Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs. The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.
I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.
Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds. What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization? Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?
Wednesday, October 14, 2015
The Department of Justice announced a $255,000 settlement vs. a CCRC. United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community in Lincolnshire, Illinois explains a proposed settlement (the settlement has to be approved by the court). The press release explains that this settlement resolves "allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois..."
The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability. Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.
As part of the settlement, the CCRC "will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy. Additionally ... the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country."
The complaint and consent order are available for download here.
Monday, October 12, 2015
AARP ran an article on the impact that livable communities have on local economies. The Livability Economy Livable Communities bring financial benefits to homeowners, business and local governments. covers a new report from AARP on The Livability Economy: People, Places and Prosperity.
This 28 page report focuses on 4 domains for livability: compactness, transportation, diversity of housing and land use integration. This is how livability is explained in the report
Livability is a high-level performance measure of neighborhood design factors that are critical to high quality of life for people of all ages. The Livability Economy identifies a framework based on these design factors that includes four essential livability outcomes, and documents how communities have benefited economically by focusing on these outcomes ....
Friday, October 9, 2015
We have previously blogged about technology that allows a person to more effectively age in place and about "smart homes." As well, we have mentioned the security issues with some technologies, so I was interested in a recent blog post published on the AARP blog Thinking Policy.
Making the Smart Home a Secure Home focuses on smart homes, described as a home designed "to help automate routine tasks and make homes more efficient." Looking at security for smart home technologies, the author offers 3 tips for a secure smart home: (1) "build strong security protections into all connected devices from the start...." (2) ensure that "software controlling connected devices is can be updated...." and (3) "securely transmitting and storing data gathered by connected devices"
The author concludes the article by saying:
The smart home promises to improve the lives of consumers by automating routine tasks and finding efficiencies that save money. Securing the connected devices constituting the smart home will make it more likely that consumers will adopt this technology. If the smart home industry continues to neglect the security of devices, government-mandated security protections might be necessary to resolve these issues.
In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.
This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is. We were talking about his research-based observation in the book about adult children and needy parents:
Adult children were not legally bound to remain and to work for their parents. Nor were they obligated to care for the old. Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.
I asked, "what about filial support laws?" Turns out that was a timely question because Professor Hartog had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015. In the interview Professor Hartog was asked to comment on filial support laws. He said in part:
Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced. Very, very, very, very rarely. So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers.
Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s. And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits. But...
I think the modern story is quite different in at least one state -- Pennsylvania. Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era. Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.
Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany.
Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.
This seems a more realistic paradigm, although not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.
October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 1, 2015
The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.
Following the Michigan Court of Appeals' 2014 ruling in Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks. Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.
In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions. Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."
The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."
October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 29, 2015
My dear friend and colleague, Mark Bauer, sent me this article, Why More Seniors Are Forming Their Own 'Villages' .
The story features the establishment of Beacon Hill Village, where twelve
like-minded neighbors ... founded the Beacon Hill Village, a local group for independent seniors to meet and support one other through the elder years. By pooling yearly membership fees, members of the village pay for a small staff that helps them find services like drivers, cleaners, and handymen.
In 2002 they formally launched Beacon Hill village as a nonprofit (despite its name, the village doesn't own any property and has no physical housing component), and today count nearly 350 members. Their example has since spurred more than 170 other villages across the country, a growing experiment in how urban seniors can network with their peers—and empower themselves.
Members pay an annual fee which includes access to staff who assist residents in obtaining needed services (the village does not provide "direct services"). There are intangible benefits as well to this model. The story discusses the sense of community provided by this concept and its benefit to residents. The concept appears to be gaining fans.
In 2010 a national organization called the Village to Village Network emerged to help found new villages and connect existing ones. ... the network’s St. Louis-based director, said she expects the number of villages to double within two years. The average village has about 100 members, meaning such a rapid expansion would still only reach about 35,000 Americans in all. [The director] ... said lower-income members are underrepresented in the network at large, and that she and her colleagues hope to change that.
As the model expands across 40 states, managers ... are trying to reconcile exponential growth with an emphasis on neighborhood-scale relationships. Fundraising, too, presents a challenge. By design, membership fees barely cover costs at many villages, including Beacon Hill, so grants and foundations often make up the rest. That presents future villages with a tough choice: commit to the fundraising grind and the uncertainty that comes with it, or raise membership fees and risk shutting out lower-income neighbors.
The Beacon Hill Village website offers this description
Beacon Hill Village, a member-driven organization for Boston residents 50 and over, provides programs and services so members can lead vibrant, active and healthy lives, while living in their own homes and neighborhoods.
Benefits include access to discounted providers who can help you manage your household, stay active and healthy, and serve your driving needs. Our social and cultural programs are always changing to support member interests.
To learn more about Beacon Hill Village, click here. The Village to Village Network website describes the village concept as "Aging's new frontier". The website contains information about the various villages in the U.S., information about how to start a village, an interactive map, information about upcoming conferences, and more. Click here to learn more about the network. This is an interesting grass-roots effort that seems to be flourishing.
Monday, September 28, 2015
Thomas Jefferson School of Law is hosting its second annual student writing competition focusing on disability law. The Crane Writing Competition, named in honor of a Thomas Jefferson alum, Jameson Crane III, seeks to encourage student scholarship at the intersection of law and medicine, or law and social services. A central purpose is to further development of legal rights and protections, and improve the lives of those with disabilities.
Who can enter? The competition is open to currently enrolled law students, medical students and doctoral candidates in related fields, who attend an accredited graduate program of study in the U.S.
Deadline for entries? January 15, 2016 (by midnight, Pacific Standard Time) via electronic submission. For details see the competition website at Thomas Jefferson School of Law: http://www.tjsl.edu/cranewritingcompetition
What will be your topic? The competition accepts papers on a wide range of topics related to disability law, including legal issues arising from employment, government services and programs, public accommodations, education, higher education, housing and health care. This should integrate well with students currently taking or who have recently completed a seminar course, thus allowing that all important "double value" for good papers.
Prizes include cash ($1,500 to first place; $1,000 for each of two second place winners), plus potential publication.
My thanks to Professor Susan Bisom-Rapp for sharing news of this year's competition. She is coordinating the competition and you can send questions directly to Susan.
Thursday, September 24, 2015
The Huffington Post blog recently carried a post from Paul H. Irving, of the Milken Institute Center for the Future of Aging and a Distinguished Scholar in Residence at the USC Davis School of Gerontology. Professor Irving opens his blog post, Why Technology Is The Catalyst For A New Era Of Aging In Place, with a reference to the movie, 2001 A Space Odyssey and a mention of a recent report from the Milken Institute with the finding that most older Americans want to age in place at their homes. "Technological advances may be an answer to that challenge." Here's why he thinks so. Professor Irving writes
The proliferation of the "Internet of things" is in full swing, and older adults will be beneficiaries. Wearables and digital devices monitor health and movement data and enhance safety. Phones, computers and social networks provide connections to family, friends, physicians and caregivers, and almost instant access to a wide range of products and services. Virtual workplaces and distance learning elevate knowledge, productivity and purpose. Thoughtful architecture and computer-assisted design create new-generation homes that are built to accommodate aging, with navigable floors, doorways and rooms, counter heights for standing or sitting, thermostats that are easy to set and entertainment options that would have been unimaginable a generation ago. Older adults can look to technology for help in preparing meals and ensuring that the right medicine is taken at the right time. Tuned to particular needs and preferences, home environments will be customized and personalized as technological innovation brings out the best of both human and machine.
Recognizing as well that local governments play a role in successful aging in place, Professor Irving discusses the need for a community to provide services, transportation, etc. After noting that it will take time to move communities in this direction, he concludes that "[a]ll ages have a stake in this -- and the true beneficiaries of these advances may well be aging generations to come. In the meantime, as concerns about the impacts of technology weigh on some, we should celebrate technology's potential to empower older adults and brighten the future of aging."
Wednesday, September 9, 2015
A few weeks ago I blogged about the technology innovations announced as part of the 2015 White House Conference on Aging. I was interested to read a July 24, 2015 article in the NY Times on the use of technology as a sort of "safety net" for elders. Technology, While Not a Fountain of Youth, Can Make Aging Safer highlights a number of different services and technologies that can allow a person to remain at home and independent longer. The article quotes Dr. Laura Carstensen , the Director of the Stanford Center on Longevity, who said "[i]n three to five years, aging will be transformed... We are in the early stages of seeing what technology can do. Nursing homes will become like the poorhouses of yore as technology makes living at home easier...."
I found the various technologies discussed in the article quite fascinating (and of course, I want to try them out right now). The article recognizes there is some ramp up time to a comfort level in using technology, especially for digital immigrants who still have something of a learning curve to adopting such new technologies.
The article referenced Dr. Joseph Coughlin, Director of MIT's AgeLab, who notes that "[d]espite the awkwardness that can accompany the adoption of new technology ...[he] predicts that technology will help people stay at home and manage their frailties far longer than they can today, when the average person who enters assisted living does so at 83." The article quotes Dr. Coughlin: “[o]ld age looks really good from here... [b]ut society must make sure that there’s still purpose to life too.”
Tuesday, September 8, 2015
Merrill Lynch, in conjunction with AgeWave released a new report on housing in retirement. Home in Retirement: More Freedom, New Choices covers six hot topics in housing for retirement, including relocation, popular locations for retirement, renovation, health issues and housing and "choices and challenges" in housing and retirement. The report opens with this paragraph
Today’s retirees have more freedom and options when choosing where and how they want to live in retirement. With the possibilities presented by unprecedented longevity, and often fewer work and family obligations than before retirement, according to the study two-thirds (65%) of retirees say they are living in the best home of their lives. However, retirees today also face challenges, and must consider how their needs may change throughout a 20-, 30-, or even 40-year retirement.
The 22 page report is available for download as a pdf here.
Friday, September 4, 2015
We have had several prior blog posts about "eldertech", that is devices, etc. designed specifically for elders (whatever age that is). The eldertech "boom" if you will has been spreading for a while to applications in homes to allow individuals to remain in their homes longer. Who wouldn't want a smart home!
If you missed this article in the Huffington Post, Huff/Post50 Blog take a few minutes and read it: Baby Boomers Are The First Tech-Savvy Retirees -- And Have The Home Renovations To Prove It. The article notes
Some 80 percent are interested in innovative ways of reducing their home expenses, such as using smart thermostats or apps to control appliances. Another 58 percent are interested in technologies to help maintain their home, such as cleaning robots or heated driveways, says David Baxter, a senior vice president with Age Wave, a research and consulting company that teamed with Merrill Lynch to gauge what retirees are doing with their living arrangements.
In fact, Baxter says 47 percent of home renovations -- about $90 billion a year -- comes from households 55 and above. Retirees are renovating their homes to make them safer as they age, but they're also trying to make their homes more attractive and versatile with the hope they can stay in them rather than move in with family or to an institutionalized setting when they are elderly.
What are the top 5 renovations? According to the article:
- adding a home office
- addressing the home's curb appeal
- kitchen upgrades
- the addition of safety features
- renovation in multi-story homes to allow the owner to live on the first floor.
Wednesday, September 2, 2015
UCLA's Center for Health Policy Research has issued its August 2015 report on "The Hidden Poor," using county-by-county data to demonstrate that "federal" definitions of poverty are not a sufficient measure of true poverty for seniors. What are the "hidden poor?" The UCLA report explains: "The Hidden Poor are defined as those who have incomes above 100 percent of the Federal Poverty Level (FPL), but who do not have enough income to make ends meet as calculated by the Elder Index."
A recent article in the Sacramento Bee highlights key components of the analysis:
More than 300,000 elderly Californians are officially poor, as measured by the federal government, but their numbers triple to more than 1 million when the “hidden poor” are counted, according to a new study from UCLA’s Center for Health Policy Research.
National poverty guidelines say that for a single elderly adult living alone, the poverty line is $10,890 a year, but UCLA’s “elder index” puts it at $23,364 in California.
Those “hidden poor” Californians over 65 tend to be Latino or black. Their greatest concentrations are found in rural counties with overall low income levels, topped by Imperial County, where more than 40 percent of the elderly are the hidden poor....
The study said population groups with especially large proportions of the hidden poor include grandparents raising grandchildren, elderly with adult children living at home, and single elders.
Accurate measurements of poverty are core to planning of resources for any age group, including seniors. How does your state account for needy seniors?
Thursday, August 27, 2015
Justice in Aging offers a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.
The papers include:
- Paper 1: Issue Overview
- Paper 2: A Review of Dementia Training Standards across Health Care Settings
- Paper 3: A Review of Dementia Training Standards across Professional Licensure
- Paper 4: Dementia Training Standards for First Responders, Protective Services, and Ombuds
- Paper 5: Promising Practices-Washington State-A Trailblazer in Dementia Training
To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home. Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards. The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel.
If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.
August 27, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, August 24, 2015
Justice In Aging has released an updated version of their guide, 20 Common Nursing Home Problems
and How to Resolve Them. Originally published in 2005, the guide has been updated and released in July, 2015. The guide is free and downloadable after registering your name, email address and indicating whether you are a professional or family member of a resident. The guide is authored by Eric Carlson, a well-know leader in the field on representing residents of nursing homes. Eric is also the author of Long Term Care Advocacy, published by LexisNexis.
Tuesday, August 18, 2015
An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy. The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California. UPDATE: link to Order dated August 14, 2015.
In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years. Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE). With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy. The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.
Insurers understandably prefer not to pay claims if they can avoid doing so. In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit."
On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.
August 18, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, August 16, 2015
The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section. The website describes the conference
The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country. The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.
The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and legal service development and delivery. The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them.
August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)
Thursday, August 13, 2015
Earlier this summer, a North Carolina appellate court reversed a trial court's finding that "membership fees" tied to condominium purchases in a retirement community were "unconscionable." In a class action suit filed by residents against Cedars of Chapel Hill LLC., this summer's ruling permits the defendant company to continue to market and sell its retirement condos as "fee simple" units in combination with "continuing care member" contracts, although the court also remanded for a jury trial before the lower court.
In a highly technical ruling that examined state real estate transfer fee rules, the North Carolina's marketable title act, and arguments under the common law about unequal bargaining power, the appellate court rejected summary judgment in favor of the residents. The court addressed allegations of both procedural and substantive unconscionability in the contracting process. The court explained in part:
Substantive unconscionability “refers to harsh, one-sided, and oppressive contract terms.” … The terms must be “so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.” Brenner v. Little Red Sch. House Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981). Plaintiffs, in raising this issue, contended that the fees in question were “exorbitantly high,” that the documents at issue were “decidedly one-sided in favor of the Company,” and that plaintiffs lacked “ability ... to negotiate any of the terms of the covenants and conditions in question in this case.” Plaintiffs further noted that the market for CCRCs in Chapel Hill is very small, leaving few alternatives.
…[W]e find plaintiffs' arguments unavailing. We recently held that “the times in which consumer contracts were anything other than adhesive are long past.” Torrence v. Nationwide Budget Fin., ––– N.C.App. ––––, ––––, 753 S.E.2d 802, 812 (quoting AT&T Mobility LLC v. Concepcion, –––U.S. ––––, ––––, 131 S.Ct. 1740, 1750, 179 L.Ed.2d 742, 755 (2011)), review denied, cert. denied, 367 N.C. 505, 759 S.E.2d 88 (2014). The mere fact that plaintiffs lacked the ability to negotiate contract terms does not create substantive unconscionability, nor does the fact that defendants were among the only providers of CCRC facilities. We hold that plaintiffs did not adequately demonstrate unconscionability as a matter of law, and that a genuine issue of material fact existed as to unconscionability, which precluded summary judgment.
For more of this ruling, see Wilner v. Cedars of Chapel Hill LLC., 773 S.E 2d. 333 (N.C. Ct. App., 2015).
For reactions from the parties' representatives, see NC Appeals Court Ruling Favors Cedars of Chapel Hill Condo Fees.
For an additional, interesting discussion of business perspectives on retirement developer control, written prior to the most recent appellate court ruling, see Two Pitfalls of Leveraging Developer Influence, from a North Carolina law firm blog.
This case -- revealing the range of complexities in contracts for senior housing and services -- is another example of why I added "Contracts" law to my teaching package, with elder law!
Wednesday, August 12, 2015
Mary Jane Ciccarello, co-director of the Borchard Center on Law and Aging, recently sent us the latest news on the fellowships announced for the 2015-16 grant year. There is strong competition for these key sources of funding for recent law school graduates to engage in new or expanded initiatives in law and aging. The new fellows include:
- Krista Granen, a 2015 University of California-Hastings graduate, who will partner with Bay Area Legal Aid in San Francisco to implement a multi-faceted project to provide direct services, establish a mobile “pop-up” clinic to accommodate seniors’ physical and capacity based impairments, and promulgate resource materials in the intersectional areas of consumer protection and Social Security. Her project will promote economic security for low-income seniors residing in Santa Clara County, a county that simultaneously experiences extreme class stratification and a dearth of necessary legal services.
- Jennifer Kye, a 2014 UVA graduate, at Community Legal Services of Philadelphia, who will implement a three-part project focused on increasing vulnerable seniors’ access to Medicaid home and community-based services. Her project will include: (1) systemic advocacy at the state level to expand the availability and improve the delivery of these critically needed home-based services; (2) development of a self-help manual that will allow seniors to advocate for themselves in accessing services in their own homes; and (3) direct representation of low-income older adults in obtaining and keeping home-based services and supports.
- Stephanie Ridella Vittandsm, a 2014 Chicago-Kent graduate, who will continue her work at the Chicago Center for Disability and Elder Law, advocating for low-income seniors in housing matters, including eviction defense, public housing voucher termination defense, and representing seniors evicting tenants or family members from their homes. By prioritizing time-sensitive housing cases and conducting expedited intake interviews, she can continue to intervene in emergency housing cases. She will continue to administer the Pro Se Guardianship Help Desk, which provides assistance to petitioners seeking guardianship over family members.
- Shana Wynn, a 22015 graduate of North Carolina Central Law School, who joins Justice in Aging (formerly the National Senior Citizens Law Center) and the Neighborhood Legal Services Program (NLSP) in Washington, DC. Ms. Wynn will work closely with Justice in Aging attorneys to formulate policy recommendations to improve the Social Security Administration’s (SSA) representative payee program for Supplemental Security Income (SSI) recipients and Social Security beneficiaries. Ms. Wynn will partner with NLSP to provide pro bono services to low-income seniors and secure access to healthcare and public benefits such as SSI. The primary goal of the project is to identify and address problems relating to SSA’s representative payee program as a means to better protect our most vulnerable seniors from misuse of their modest incomes.
August 12, 2015 in Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (1)
Monday, August 10, 2015
The Public Policy Institute (PPI) of California recently profiled demographic changes likely to affect that state in coming decades, including the impact of a projected increase, to 20%, of the proportion of the population aged 65+. One especially interesting component is the impact of seniors who are likely to be "single," especially those without the assistance of children, spouses, or other close family members, a trend that seems likely to be true nationwide. From PPI's report (minus charts and footnotes):
Family structures in this age group will also change considerably—in particular, marital status will look quite different among seniors in 2030 than it does today.... The fastest projected rates of growth are among the divorced/separated and never married groups. Between 2012 and 2030, the number of married people over age 65 will increase by 75 percent—but the number who are divorced or separated will increase by 115 percent, and the number who are never married will increase by 210 percent....
Another significant change will be in the number of seniors who have children. Those who have never been married are much less likely to have children than those who have been married at some point. As a result, seniors in the future will be more likely to be childless than those today.... In 2012, just 12 percent of 75-year-old women had no children. We project that by 2030, nearly 20 percent will be childless. Since we know that adult children often provide care for their senior parents, these projections suggest that alternative non-family sources of care will become more common in the future.
Thus, just as we're making noise about supporting seniors' preference to "age at home," we may be over-assuming that family members will be available to provide key care without direct cost to the states. Hmmm. That's problematic, right?
More from the California PPI report, including some conclusions:
California's senior population will grow rapidly over the next two decades, increasing by an estimated 87 percent, or four million people. This population will be more diverse and less likely to be married or have children than senior are today. The policy implications of an aging population are wide-ranging. We estimate that about one million seniors will have some difficulties with self-care, and that more than 100,000 will require nursing home care. To ensure nursing home populations do not increase beyond this number, the state will need to pursue policies that provide resources to allow more people to age in their own homes....
The [California In-Home Service & Supports] IHSS program provides resources for seniors to hire workers, including family members, to provide support with personal care, household work, and errands. One benefit of hiring family members is that they may provide more culturally competent care. Medi-Cal is already the primary payer for nursing home residents, and the state could potentially save money by providing more home- and community-based services that support people as they age, helping to keep them out of institutions. Finally, the projected growth in nursing home residents and in seniors with self-care limitations will require a larger health care workforce. California’s community college system will be a critical resource in training qualified workers focused on the senior population.
The San Diego Union-Tribune follows up on this theme in California Will Have More Seniors Living Alone, by Joshua Stewart.
August 10, 2015 in Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Retirement, State Statutes/Regulations, Statistics | Permalink | Comments (0)