Thursday, August 14, 2014
The journal Health Affairs is seeking articles on older adults, and specifically regarding the care and management of multiple chronic conditions among this population. We are interested in work that spans the full range of care settings, including primary care and specialty practices, hospitals, nursing homes and other long-term care settings. We are grateful to The John A. Hartford Foundation for providing support for our ongoing coverage of these topics. There is no deadline for submissions; papers on these topics will be considered on an ongoing basis and considered for publication through 2015. For more information, contact Health Affairs executive editor, Don Metz: email@example.com.
Applications now open for 2014 Rosalinde Gilbert Innovations in Alzheimer's Disease Caregiving Legacy Awards
Applications are now open for the 2014 Rosalinde Gilbert Innovations in Alzheimer's Disease Caregiving Legacy Awards that honor the efforts of communities across the country that develop supportive policies and programs for underserved communities, and promote creativity for caregivers and those they care for. Now in our seventh year of administering the award program for The Rosalinde and Arthur Gilbert Foundation, we are inspired by those who see the needs of family caregivers and respond with innovative ways to address the many and varied issues family caregivers face every day. Award winners receive $20,000 to use as they choose in their programs. You can find descriptions of the past 6 years of winning organizations and programs in our
Digital Scrapbook. (Included are several video clips showing a few of the programs in action.)
If you have a program or project you would like considered, apply now! If you know of a program or project that should apply, forward this message to them! Applications are online only, and the deadline is August 22, 2014 at 5pm.
University of Memphis Law Professor Andrew Jay McClurg's article, "Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation," appears in May 2014 issue of the Hastings Law Journal. Professor McClurg proposes that states adopt "state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders." In correspondence, Professor McClurg points to the fact that on the surface it may appear that older persons -- victims -- are "voluntarily" parting with assets, when "in fact [the transactions] occur because of undue influence, psychological manipulation and misrepresentation."
Professor McClurg stresses the need for a statutory presumption to give prosecutors an effective tool to hold offenders accountable. His proposal has already had direct impact, in the form of Florida legislation, Fla. Stat. 825.103(2) signed into law June 20, 2014 and effective on October 1, 2014. Key language from the provision includes:
"Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transfer or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation."
The Florida provision applies "regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates...." Further, the new Florida provision does not apply to "persons who are in the business of making loans" or "bona fide charitable donations to nonprofit organizations that qualify for tax exempt status."
In cases tried to a jury under the Florida statute, the law provides that jurors "shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection." The law's presumption "imposes no burden of proof on the defendant."
UPDATE: Professor McClurg wrote again to explain that he worked directly with the Florida Elder Exploitation Task Force and with Florida Representative Kathleen Passidomo to secure passage of the new law. Professor McClurg's presumption proposal was introduced as part of H.B. 409, which passed unanimously through the two houses of the state legislature. According to Professor McClurg, the statute is the only one of its type in the nation. Thanks for the clarification, Andrew!
Wednesday, August 13, 2014
The July, 2014 issue of the Social Security Administration's International Update is now available.
The Update includes articles on Germany's new pension rules, proposals for revamping Australia's social support system, and more.
For individuals with at least 45 years in the work force, Germany recently lowered the minimum age for full retirement benefits to age 63. As explained on NPR's story, the reduction is both popular and unpopular, depending on the point of view. Critics point to the reduction as pandering by political parties seeking short term voter support, and cite Germany's past objection to bailouts for lower-age retirement benefit programs in other countries, including Greece. Here's the link to the Morning Edition podcast.
Tuesday, August 12, 2014
It is no secret that the long-term care insurance industry has struggled to offer products that are both attractive and affordable for consumers and financially worthwhile for the insurance companies. MetLife and Prudential no longer offer new policies, for example.
Genworth, the largest provider of long-term care insurance, announced on July 29, 2014 that its second quarter showed significant changes and that it is conducting a comprehensive review of its long term care insurance claim reserves. Apparently the company's investors have asked for additional information, following the last in-depth review of the claims reserve, which was conducted in 2012. Genworth's news release explained:
"The primary areas of focus in the current review are: (i) an analysis of potential causes of the meaningful increases in adverse claims experience in the second quarter of 2014 and (ii) an assessment of the assumptions and methodology underlying the associated reserves, including morbidity, mortality, interest rates and claim terminations. The company intends to complete this review before the release of financial results for the third quarter of 2014. The company continues to believe that the existing assumptions and methodology provide the most reliable best estimate. However, given the review underway that will consider both long-term and recent experience, the company will likely change some of its assumptions, which could increase our long term care insurance claim reserves, and any increase may or may not be material."
As reported by Reuters, ratings of Genworth by Fitch already assume some level of LTC earnings and reserve volatility, but depending on the size of any charges taken by Genworth in the third quarter, "Fitch may review the ratings of GNW [Genworth] and the review could result in a revision in the Outlook to Negative or a rating downgrade."
Monday, August 11, 2014
NCLC's Consumer Rights Litigation Conference on November 6-9, 2014 in Tampa, FL has scholarships available for consumer rights advocates.
REGISTER ONLINE TODAY by clicking on this link here: Register Online
Source: National Consumer Law Center
A New York teenager whose grandfather suffers from Alzheimer's disease won a $50,000 science prize for developing wearable sensors that send mobile alerts when a dementia patient begins to wander away from bed, officials said on Wednesday. Kenneth Shinozuka, 15, who took home the Scientific American Science in Action Award, said his invention was inspired by his grandfather's symptoms, which frequently caused him to wander from bed in the middle of the night and hurt himself. "I will never forget how deeply moved my entire family was when they first witnessed my sensor detecting Grandfather's wandering," Shinozuka said in a statement. "At that moment, I was struck by the power of technology to change lives." His invention uses coin-sized wireless sensors that are worn on the feet of a potential wanderer. The sensors detect pressure caused when the person stands up, triggering an audible alert on a caregiver's smartphone using an app.
The award honors a project that aims to make a practical difference by addressing an environmental, health or resources challenge, said Scientific American Editor in Chief Mariette DiChristina.
Read more at Reuters.
The Washington Post recently completed a disturbing three-part series on hospice. To analyze the quality of services rendered to terminal patients, the reporters reviewed "Medicare billing records for more than 2,500 outfits, obtained an internal Medicare tally of nursing care in patients near death and reviewed complaint records at hundreds of hospices." The Post tracks data pointing to staff shortages, lack of coordination in care, failure to provide sustained assistance during critical periods, and the potential for Medicare to incentivize such gaps through perverse funding priorities.
Sunday, August 10, 2014
By 2050, a quarter of China’s population is expected to be age 65 or older. Although the government has recently loosened its restrictive population policy to allow most couples to have two children, so far it doesn’t look likely that any forthcoming baby boom will save China from its rapidly aging population. China’s current elderly, especially those living in rural areas, frequently endure chronic medical conditions without treatment, according to a new study in the journal International Health. Dai Baozhen of Jiangsu University’s Department of Health Policy & Management analyzed the results of China’s semi-regular “health and nutrition survey” for 2009, looking in particular at the responses from rural households in nine provinces.
Among his findings: China’s elderly are likely to be less educated than younger cohorts and often poorer. Nearly 70 percent of the rural elderly in the survey had an annual income of less than 5,000 renminbi ($810). Many also said their children had left home to work in cities, and while they might send money back, they couldn’t provide steady emotional support or help in obtaining and monitoring health care. Fifty-eight percent of the elderly respondents were illiterate, another barrier in obtaining health services.
It was not uncommon for China’s rural elderly to suffer chronic conditions, according to the study, including hypertension (18 percent), asthma (6 percent), and diabetes (3 percent). And those figures represent diagnosed conditions—the worrying possibility exists that many elderly suffer in the absence of any diagnosis. Fully a quarter of elderly were diagnosed with hypertension, and a third of those diagnosed with diabetes received no treatment.
Isolation and depression are also significant risks for rural elderly. China’s overall suicide rate has dropped sharply over the past two decades, especially among rural women under age 35. But among China’s elderly, it remains distressingly high. According to a recent study by researchers at the University of Hong Kong, cited by the Economist, the suicide rate for men in the Chinese countryside aged 70 to 74 is 41.7 per 100,000 (more than four times higher than the national average of 9.8 per 100,000).
Source/read more: Bloomberg
Saturday, August 9, 2014
The U.S. Department of Labor’s Office of Disability Employment Policy invites state governments and other interested stakeholders to participate in an online dialogue through Monday, Aug. 18, on hiring, retaining and advancing workers with disabilities. “State Governments: What Can We Do? Join the Conversation for Change,” will help inform ODEP’s technical assistance to states.
“State governments can play a critical role when it comes to increasing the employment rate of people with disabilities,” said Kathy Martinez, assistant secretary of labor for disability employment policy. “We need to fully understand their needs and how we can assist them so they, in turn, can foster increased employment of people with disabilities in state government and in the private sector.”
The online dialogue, will be facilitated through ODEP’s ePolicyWorks initiative and moderated by ODEP’s employer policy team.
ODEP invites state government disability employment professionals, state human resource and diversity professionals, and all others with insight into disability employment issues to participate in the dialogue. Participants are encouraged to share new or innovative approaches to employing individuals with disabilities and to comment or vote on posts made by others.
Friday, August 8, 2014
President Obama traveled to Fort Belvoir, Virginia to sign a reform bill giving the Department of Veterans Affairs the necessary resources to improve access and quality of care for the men and women who have served our country in uniform. In remarks before the bill signing, President Obama addressed the misconduct that has taken place at some VA facilities across the country —
We’ve already taken the first steps to change the way the VA does business. We’ve held people accountable for misconduct. Some have already been relieved of their duties, and investigations are ongoing. We’ve reached out to more than 215,000 veterans so far to make sure that we’re getting them off wait lists and into clinics both inside and outside the VA system.
We’re moving ahead with urgent reforms, including stronger management and leadership and oversight. And we’re instituting a critical culture of accountability -- rebuilding our leadership team, starting at the top with Secretary McDonald. And one of his first acts is that he’s directed all VA health care facilities to hold town halls to hear directly from the veterans that they serve to make sure that we’re hearing honest assessments about what’s going on.
The VA reform bill -- officially the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014 -- passed Congress with overwhelming bipartisan support, and will expand survivor benefits and educational opportunities and improve care for victims of sexual assault and veterans struggling with traumatic brain injuries. But the main focus of the new law is to ensure that veterans have access to the care they’ve earned.
Thursday, August 7, 2014
It was just about a year ago that Rebecca Morgan and I joined Kim Dayton on the Elder Law Prof Blog. Thank you, Kim, for this invitation! I'm not sure how many postings each of us has written over the last year -- but I suspect we've each averaged close to five items per week.
I know I've learned a lot from this "joint and several" effort, both in reading my colleagues' thoughtful items and in thinking more deeply as I try to craft my own. I know the Blog has opened new and interesting doors for me, including conversations with law faculty across the country -- and, indeed the world -- as well as many late night consulations with hard-working attorneys who are on the frontlines of topics we write about in the Blog. Our pieces sometimes have "second" lives, as when the editor for the Illinois Bar Association's Trust & Estate section asked for an expanded discussion of liability for family members under nursing home contracts, based on a blog post. Older adults sometimes email me to correct, question or clarify some point I've tried to make. Readers call or write to suggest new directions, new cases, and new articles for us to pursue. Thank you all!
Keep your cards and letters coming, folks. Let us know what we should be covering, Tell us what you like (or don't) about what we have included on the Elder Law Prof Blog to date. Happy Anniversary to our readers!
Wednesday, August 6, 2014
The White House has announced the 2015 White House Conference on Aging. According to the announcement, Nora Super will be the Executive Director of the WHCOA.and "[t]he 2015 White House Conference on Aging is an opportunity to look ahead to the issues that will help shape the landscape for older Americans for the next decade." The website for the conference, WhiteHouseConferenceOnAging.gov, is expected to be accessible by the end of the summer.
With the upcoming conference in mind, The Gerontologist issued a call for papers (abstracts due May 15 and papers due August 15) which "contribute novel conceptual manuscripts that outline a vision of older adults’ economic and retirement security, health, caregiving, and social well-being for the decade ahead… [as well as] pragmatic papers that explore ways to ensure the modification and/or continuation of … programs for present and future generations..."
In recent Formal Ethics Opinion 2014-F-158, the Board of Professional Responsibility for the Supreme Court of Tennessee addressed the following interesting question:
"Can a lawyer who represented a testator refuse to honor a court order or subpoena to disclose, prior to the client's death, a Will or other testamenatry document executed when the testator was competent on the basis that the document is protected against disclosure by the attorney-client privilege or confidentiality."
The Board's opinion indicates that not only "may" the lawyer refuse to disclose the will, but where circumstances indicate the client is no longer able to give informed consent because of intervening dementia, the lawyer may have a duty to raise all "nonfrivolous grounds" to protect the will from disclosure, including privileges under Tennessee statutes, citing Rule of Professional Conduct 1.6(c)(2).
In opening its analysis, the Board noted that it has become "increasingly common for courts to appoint attorneys in a representative capacity to represent individuals suffering from dementia and/or Alzheimer's who are the subject of a dispute or litigation regarding management of the individual's funds and/or person." During the course of the dispute, parties may attempt to seek review of the will prior to the death of the testator, citing reasons such as the need to "engage in estate planning."
The Board acknowledged the potential for facts that would permit the lawyer to disclose the contents of the disabled client's will, such as when a "lawyer believes the disclosure of the contents ... would be in furtherance of client's interest."
In commentary on the Tennessee Board Ethics Opinion, the ABA/BNA Manual on Professsional Conduct, in Vol. 30, No. 15, observed that "a 2010 law review article cites demographic patterns that have increased the likelihood of such scenarios," pointing to "A Common Thread to Weave a Patchwork: Advocating for Testatmentary Exception Rules," 3 Phoenix L. Rev. 729, 734-35 (2010) by then law student Andrew B. Mazoff, now an attorney in Phoenix.
Thanks to my colleague and ethics guru, Laurel Terry, for sharing this ethics opinion.
Tuesday, August 5, 2014
The Law and Ethics of Dementia, co-edited by Israel Doron, Charles Foster and Jonathan Herring, recently released in hardback by Hart Publishing and available for e-readers in September, is definitely on my "must read" list. Followers of this Blog will certainly recognize Issi Doron, from the University of Haifa, who has long exercised an international, comparative perspective on issues in ageing. Professor Foster is a practicing barrister and a fellow at Green Templeton College, University of Oxford, which is also the working home of prolific writer and Law Professor Herring.
The book is organized into five parts, Medical Fundamentals, Ethical Perspectives, Legal Perspectives, Social Aspects, and Patient and Carer Perspectives. As part of the first section, physicians and researchers Amos Korczyn and Veronika Vakhapova co-author "Can Dementia be Prevented?" a question we all hope will be answered in the affirmative. Not surprisingly, given the title of the book, the section on ethical perspectives promises to be especially fascinating, offering multiple views on ethical components of decision making and care. To suggest the scope, Andrew McGee's chapter is on "Best Interest Determinations and Substituted Judgement," while Leah Rand and Mark Sheehan tackle the challenge of "Resource Allocation Issues in Dementia."
In the Social Aspects section, I notice that Syracuse Law Professor Nina Kohn has a chapter on "Voting and Political Participation," while Chinese (and University of Pennsylvania) health care scholar Ruijia Chen and colleagues address "Physical, Financial and Other Abuse."
With more than forty individual chapters and dozens of international writers, this book promises to be a key guide for the future.
Governing did a story about where in the country by state the various generations live. The story, A State-by-State Look at Where Each Generation Lives, ran July 31, 2014. According to the story
You'll find the greatest concentration of baby boomers in three northeastern states: Maine, New Hampshire and Vermont. Boomers make up just under 30 percent of the population in these states, which are also the nation's oldest in terms of overall population... For the most part, slightly fewer baby boomers tend to reside in southern states. This could soon change, though, if historical migration patterns hold true and boomers opt to move south as they retire.
There are interactive maps for the Silents, Boomers, Xers and Millenials. The silents, totaling less than 11% of the population, and thus the smallest cohort, live mostly in Florida, but also live in West Virginia, Maine, Montana, Arizona and Arkansas.
Arin Fife, from the family law firm of Boyle and Feinberg in Chicago, offers "Don't Let Divorce Derail Your Retirement Plans: Understanding Your Options Before, During and After Your Marriage" in the Summer issue of the ABA's magazine Family Advocate. She reviews retirement basics, including differences between defined benefit and defined contribution plans, how accounts are valued, how accounts may be divided and addresses what do do with contributions during the divorce proceedings. She reminds that a low-income spouse may be advised to delay a divorce if approaching the ten-year anniversary of the marriage date, thereby maximizing Social Security options based on the stronger earner's SSA record. She warns that some "states consider this an offset against accumulation during marriage. Ask your lawyer for clarification in your state."
Lots of good tips here, including the reminder that if retirement accounts will be divided using a "Qualified Domestic Relations Order" or QDRO, it is important to give the plan administrator an opportunity to review and "pre-approve" the plan, thereby avoiding arguments or surprises after the property division or divorce is complete.
Monday, August 4, 2014
There is a fair amount of debate about whether and when long-term insurance is the best way to plan for the possibility of disability requiring future care. But, here is a first, at least in my experience: a claim by a major long-term care insurer that a policyholder engaged in fraud in seeking benefits tied to proof of his alleged need for assistance with activities of daily living. Undercover camera work was involved.
According to the federal magistrate called upon to rule on the defendant/insured's motion to dismiss, here are the key facts alleged (minus the citations to the record):
"At some point not specified in the Complaint, Transamerica began investigating whether [Defendant] was able to perform his Activities of Daily Living without assistance. To this end, Transamerica retained an investigator to conduct video surveillance of Jurin between January 5, 2012, and February 5, 2012. Transamerica alleges that this 'investigator recorded [the defendnt] in engaging in activities inconsistent with his asserted limitations.' An investigator conducted additional surveillance in 2013 from September 27 through 29, on October 5, and from October 7 through 12. Transamerica alleges that on these dates the investigator recorded [the defendent] performing various activities including walking uphill, walking while holding bags, entering and exiting a car without assistance, shopping, and doing yard work.
On October 9, 2013, Dr. Mohinder Nijjar, a board-certified orthopedic surgeon performed an Independent Medical Exam (“IME”) of [the defendent] and, based on [the defendent's] self-reporting and self-limiting behavior, opined that [he] was unable to perform Activities of Daily Living without assistance. Transamerica provided Dr. Nijjar with the investigator's video surveillance recordings and asked him whether the recordings altered the conclusions of his IME report. In December 2013, Dr. Nijjar issued a supplemental report in which he stated that, based on his observations in the videos, [the defendent] could engage in Activities of Daily Living without assistance, including washing, dressing, and feeding himself and walking. Dr. Nijjar further opined that Jurin was able to perform instrumental activities of daily living such as preparing meals, housekeeping, and laundry."