Friday, January 19, 2018

UPitt Law Prof Larry Frolik Urges Change in Pennsylvania Guardianship Law to Clarify Lawyer's Role in Representing Alleged Incapacitated Persons

Larry Frolik, University of Pittsburgh Law Professor and all-round elder law guru, responds to a 2016 decision by the Pennsylvania Superior Court for In re Sabatino with a strong call for change in existing guardianship laws.  In the abstract for his January 2018 article for the Pennsylvania Bar Association Quarterly on The Role of Counsel for an Alleged Incapacitated Person in Pennsylvania Guardianship Proceedings [currently membership-restricted], he writes:  

When a petition is filed requesting that court find an individual to be incapacitated and appoint a guardian for the individual, the alleged incapacitated person [AIP] has a right to counsel. If the individual does not have counsel, the court may, but is not required to,  appoint counsel. Whether counsel is hired by the [AIP] or appointed by the court, the question arises as to what is the proper role of counsel.  Should counsel act solely as a zealous advocate and attempt to resist the imposition of the guardianship if so directed by the [AIP] or should counsel act in the best interest of the person with counsel making the determination of what is in the person's best interest?

 

A 2016 Superior Court case considered that issue and concluded that if the [AIP] desired not to have a guardian, counsel should so inform the court, but counsel, acting in what counsel believed was the person's best interest, could also tell the court that counsel believed that the person needed a guardian.  That holding is not consistent with the fundamental obligation of counsel to advocate for what the client, the [AIP], desires.  Counsel should not be making an independent determination that the person would be better served if a guardian were to be appointed.  The decisions as to whether an [AIP] is legally incapacitated and, if so, whether the appointment of a guardian is appropriate, are decisions that only a court should make.  

 

The Pennsylvania Legislature should amend the law of guardianship to clarify that the role of counsel for an [AIP] is that of a zealous advocate, and that counsel should not act in what counsel believes are the person's best interest.  If the Legislature does not act, in the future courts should reexamine the issue and rule that counsel should act solely as a zealous advocate and not attempt to promote the person's best interest. 

January 19, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 18, 2018

Patient Dumping-By the Health Care Provider

There's been a lot of buzz after that video surfaced of a hospital patient left at a bus stop just in a hospital gown. NPR ran a follow up story, Why Was A Baltimore Patient Discharged At A Bus Stop In Just A Gown?  The president and CEO of the hospital in a subsequent press conference indicated that the event was isolated and those involved would answer for their actions.  There is a lot we don't know about the story (and some we may never know because of privacy issues). CBS then ran a story from the mother of the patient. In the story Mother calls hospital "callous and heartless" for leaving her daughter in the cold, the mother explains that her daughter, the patient, has mental illness.

How is this different, if at all, than granny dumping, where a family member might abandon an elder relative at the emergency room? I did a quick google search to see if I turned up any recent articles on granny dumping, and didn't really find much, except for this one from a year ago, Japanese people who can't afford elder care are reviving a practice known as 'granny dumping'.

What's your take? Is this not specifically happening much, if at all, in the US any more?

 

January 18, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Monday, January 15, 2018

Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case

Regular readers of this Blog will remember that we have been following the case of Melmark Inc. v. Schutt, wherein a residential facility for disabled children and adults in Pennsylvania, has sought to hold 70+ year-old New Jersey parents liable for approximately 13 months of care the facility provided for their autistic adult son after New Jersey stopped public payments for his support.  The parents were successful at the trial and intermediate courts of appeal in Pennsylvania, arguing that New Jersey, not Pennsylvania law controlled the issue of any filial obligation.  Pennsylvania statutory law imposes liability on certain family members, without regard to age, to cover costs of care provided to "indigent" children or parents, while New Jersey's filial support statute limits obligations for older adults, for "any person 55 years or over," to support for minor children or spouses.  See N.J.S.A. Section 44:1-140(c) (Relatives Chargeable).   The unpaid costs in question totaled more than $200,000, before the Melmark took it upon itself to take the son back to New Jersey, dropping him off at a local hospital.

On December 26, 2017, the Pennsylvania Supreme Court granted the facility's request for further appeal on the following issues:

1. Whether the Superior Court erred as a matter of law in finding that New Jersey’s filial support statute, rather than Pennsylvania’s, applied
in this matter where there is no conflict between the New Jersey statute and Pennsylvania’s statute under the facts of this case?


2. Whether the Superior Court erred in finding that New Jersey has a greater interest in the application of its filial support statute where, inter alia, all of the relevant contacts, with the exception of the residency of Respondents Clarence and Barbara Schutt, are with Pennsylvania; where the Schutts took affirmative actions to keep their highly disabled son in a Pennsylvania nonprofit residential and therapeutic institution, Petitioner Melmark, Inc., with the avowed aim of Melmark funding his care for his “entire life,” including manipulating the Pennsylvania and New Jersey legal systems to prevent his return to New Jersey; and where the Superior Court’s decision results in Melmark being entirely uncompensated for providing an extended period of vital, intensive care for the Schutts’ son?


3. Whether the Superior Court erred in finding that the lower court properly denied relief on Melmark's claims for quantum meruit and unjust enrichment? 

I've been teaching Conflicts of Law for many years and I actually used a variation on this problem for the final exam in my Fall 2017 course.  As was true in the lower courts in the Melmark case, most of my students came to the conclusion that under the forum's choice of law rules, the state with the most substantial relationship to the issue of parental liability for statutory support was the state where the parents and son were residents, here New Jersey.  

My best guess is that the Pennsylvania Supreme Court may go more deeply into  the common law claims for "quantum meruit and unjust enrichment" (which in Pennsylvania are usually treated as alternative names for the same causes of action, sometimes termed "quasi-contract" claims). 

As I've been saying for months now, this is a tough case for everyone.  

January 15, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 8, 2018

Florida Nursing Homes and Emergency Generators

Here's an update on this issue in Florida.  The Florida legislature opens its 2018 session on January 9, 2018 and one of the issues on the legislative agenda is whether to legislatively require nursing homes to have generators and enough fuel to power them for a certain length of time during an emergency.  In addition, concerning the Florida administrative agency's proposed rules on requiring emergency generators (the Governor's emergency administrative order was struck by an ALJ): the ALJ has scheduled a hearing over three days (January 17, 19 and 24, 2018).

Although this issue Florida resulted from Hurricane Irma, it's worth watching.  Emergency generators can be important beyond just hurricane-prone states. Consider the recent winter storm Grayson that was described as a "bomb cyclone". The storm resulted in power outages for many, so it's not too far a stretch to recognize that emergency generators could come in handy beyond Florida. Stay warm!

January 8, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

The Challenge of Finding Safe & Effective Pain-Killers for Older Adults

Over the holidays, unfortunately I had the experience of learning more about how older consumers struggle to understand what safe and effective treatments are available.  In this instance, my mother, in her 90s, was experiencing overwhelming back pain.   She has a long-history of osteoporosis (and it runs in the family on the female side, so my sister and I pay particular attention to this issue!) and in the last few weeks without any known "accident," she had begun to find it almost impossible to walk without pain.  She's not the complaining type, and, having been raised by parents who were Christian Scientists, she tends to follow a "mind over matter" approach to this kind of problem.  But, by Sunday last week, it was no longer possible to pretend she wasn't deeply uncomfortable.

We began another health care odyssey.  Some of the steps we had already learned from past "holiday" experiences with my parents, including calling the "non-emergency" 911 number to get an experienced EMT evaluation of her status in the home, and, if necessary, a transport from her home to the emergency room.  Then, recognizing that New Year's Eve is probably not the best night (if such a thing even exists) to spend in the local hospital's ER, we decided to go early in the morning.  

Five hours after our arrival in the ER, we left with a new "LSO" back brace, instructions on how to use it, and prescriptions for a different walker and a new pain medication.  On the latter point, we informed the ER physician of the fact Mom had not done well on narcotic pain relievers in the past ("why are those ants crawling on the walls") but we were told the drug prescribed was like a very strong Ibuprofen, but in a formulation that would not interact with the blood thinner she was on or her pacemaker.

We duly stopped at the pharmacy on the way home, and I signed my life away in order to pick up her prescription as she was unable to walk in to get it herself.  When we got home,  there were two documents in the bag with the prescription, including what I would call a typical "product insert" that looks like a page from the Physician's Desk Reference and a second sheet entitled "Directions for Use."  The top of the instructions warned, "This is a narcotic drug and not recommended for the relief of pain in...."  And then the list of disqualifying conditions included at least 3 of my mother's age-related conditions.  Yikes!  

My sister and I are  not usually intimidated by product inserts, but here the instructions seemed directly at odds with our concerns about narcotics for mom.  Everything we found on the internet only made us more confused and worried.  

By this time it was late on New Year's Eve, her pain was increasing, and we knew we couldn't persuade her to go back to the ER and her primary care physician wasn't on call.  The bottle said "every 6 hours."  The ER physician had orally told us "every 6 to 8 hours," and finally we knew we had no choice -- her pain was real and we started using it at 12 hour intervals, gradually moving down to 8 hour intervals before she seemed to have real relief.  It was another 5 days before her very kind primary care physician could squeeze us in for an appointment to have a more complete conversation -- and the good news is that we are now more comfortable about a longer range plan.

So on the heels of that multi-day experience, I was very interested in an article I spotted for my airplane trip home to Pennsylvania from Arizona. Phoenix Magazine had a detailed feature story in their January 2018 issue on "Pharma Chameleon," reporting on the arrest for fraud and racketeering charges of INSYS  Therapeutics founder, a "billionaire executive" in Phoenix, well-known for his work on painkiller medicines.  The history of this executive has nothing to do with my mother's pain relief medicine, but it was definitely a reminder that the pharmaceutical industry is deeply involved in pursuit of the "next" generation of painkillers.  And, of course, this article contrasts with the recent news that a different drug company is dropping R & D for a dementia drug.  Pain-killers are still "in," and dementia drugs apparently are "out."  

So, I recommend the Phoenix Magazine article!  I was particularly struck by this paragraph:    

In November, Kapoor [the Phoenix-based INSYS executive arrested by the feds] pleaded not guilty to all charges and is currently awaiting trial, along with the six other former executives, who pleaded not guilty last January. All have severed ties with INSYS, which continues to do business. In July, it received FDA approval for a new drug, Syndros, a synthetic form of THC, the psychoactive component found in cannabis, to treat chemotherapy-induced nausea and loss of appetite in AIDS patients. As it did with Subsys, the company is looking into ways to manufacture the drug as a sublingual spray. Under Kapoor, the company donated $500,000 to the effort to defeat the measure to legalize marijuana for recreational use on Arizona’s 2016 general election ballot, paving the way for the synthetic substitute.

January 8, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Wednesday, December 6, 2017

When a Tattoo is an Advance Directive?

I've told my students urban myths before about a tattooed advance directive and use that story to talk about the requirements for making a valid directive. So I was interested in reading the article about the DNR tattoo. Health News Florida ran the story, Did 'Do Not Resuscitate' Tattoo Reflect Patient's True Wish?  reports the story of a patient at Jackson Memorial in Miami with a DNR tattoo.  A tattoo presents some significant ethical questions for doctors. As this story reflects, the immediate questions are "is it legal and ... is it truly the man's wishes,"  In this case the patient presented at the ER alone with no ID  and no family were reachable. Taking this to the hospital ethics committee, the committee ultimately determined this was a valid expression of the patient's directions.  In this case, the tattoo contained the patient's signature. The Atlantic also ran a story, What to Do When a Patient Has a 'Do Not Resuscitate' Tattoo which reports a split of opinions from experts regarding whether the hospital should honor the tattoo. One expert offers

It’s the discussion that matters, not the words on the form (or the tattoo), says Joan Teno from the University of Washington, who studies end-of-life wishes. And in many cases, those discussions don’t happen, or aren’t respected. In a study of bereaved family members, she found that one in 10 say that something was done in the last month of a patient’s life that went against their wishes. “The fact that someone has to resort to a tattoo to have their wishes honored is a sad indictment of our medical system,” Teno says. “We need to create systems of care where patients have the trust and confidence that their wishes will be honored. That’s the important message from this case.”

 Note to readers: republished to correct typo. Note to self-don't post with head cold.

 

 

 

December 6, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Monday, December 4, 2017

Growth of Mediation Programs in Orphans' and Probate Courts

Last Saturday, I had the unique privilege to sit in on a day of Advanced Probate Mediation Training, a component of a larger ADR program at the Orphans/ Court for Prince George's County, Maryland.  The attendees included long-serving mediators from other court divisions, judges and attorneys and individuals interested in a formal mediation process for probate cases. The facilitators for the training were Mala Malhotra-Ortiz and Cecilia Paizs, very experienced educators and ADR specialists. Chief Judge Wendy Cartwright welcomed us all and made it clear that mediation, collaborative probate and structured settlements are three vital programs for the probate division.  Certainly this is part of a trend favoring ADR, now applying to post-death disputes. 

My strongest impression of the day was the warm and positive demeanor of the folks I met, especially as they were giving up most of their Saturday.  I had the feeling that they were eager to share this experience.

Part of the training involved role plays -- and everyone in the room took the exercises seriously.  In Maryland, a challenge to a will is called a "caveat" proceeding, and a threshold question for court administrators is whether a specific dispute seems to be a good candidate for referral to mediation.  

In one exercise, I played a minor role (a "grandchild") of the testator, in a fact pattern that involved two named beneficiaries, a biological child and a second beneficiary who wasn't a direct blood relation. The fact pattern was realistic, as both sides wanted "accountings" for pre-death expenses by those serving as the caregiver or  POA for the elderly testator before her death.  The dispute included a long-history of difficult family dynamics, and was realistic as there was a temptation for other family members to take sides with the primary disputants. We even had an "obstructionist" attorney as an assigned role, someone who was still advocating for the purely "legal" outcome during the mediation.  

The majority of the participants were also lawyers -- and I could quickly see how uneasy the fact pattern made some attorneys. One option for the mediated outcome was distinctly "nonlegal" -- i.e., permitting the parties to split the proceeds of the estate in a way that was not the same as the testator's directions in her will.   The facilitators did an excellent job in counseling the lawyers on how to change their thinking, so as to allow consensus to emerge for a final, written settlement agreement. The fact pattern also put us in the position of needing to think about whether there had been any pre-death elder exploitation, and if so, to discuss how mediators should handle the possibility of a "crime."

I know our law students are going to be very lucky to have Mala Malhotra-Ortiz join us at Dickinson Law in the near future as an adjunct professor.   And, by the way, for anyone interested in why probate courts are sometimes called  "orphans' courts," I recommend the Court's link above on the history of Orphans' Courts in Maryland. 

December 4, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, December 1, 2017

More on Nursing Homes and Disasters

We've been blogging about the fire at the SNF in Pennsylvania and the SNF in Florida during Irma.  Here's an update on the Florida SNF in South Florida. Health News Florida reports that 12 of the 14 deaths are being classified as homicides. 12 Of 14 Nursing Home Deaths After Irma Ruled Homicides  reports that

Authorities say the deaths of 12 of the 14 Florida nursing home patients who died after Hurricane Irma have been ruled homicides.

The Sun Sentinel reports that autopsy results from the Broward County medical examiner's office were released Wednesday.

No arrests have been made. Police spokeswoman Miranda Grossman says the investigation will continue and part of that will be determining who should be charged.

The article also notes that 2 deaths have been determined not to be related from the lack of air conditioning or electricity.

December 1, 2017 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, November 30, 2017

Questions Arise With Evictions of Residents from Continuing Care (Life Plan) Communities

Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.  

I've also been hearing about more attempts to evict residents from  Continuing Care Communities, also known as CCRCs or Life Plan Communities.   For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC.  The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years.  When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue.  Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.  

Is there a trend?  Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision?  If the answer is "yes," then there is a tension here, between client expectations and marketing by providers.  Such tension is unlikely to be good news for either side.    

CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.  

The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain.  Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.      

In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased.  A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering."  All of that indicates dementia care is part of the "continuing" plan.

CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care.  Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing.  Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.

Continue reading

November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Monday, November 20, 2017

University of Missouri Law Professor David English Presents Guardianship Reforms to New Mexico

University of Missouri Law Professor David English, who is part of a team working on new Guardianship Law proposals for the Uniform Law Commission, was reportedly in Albuquerque New Mexico recently.  His appearance is in response to one of the latest regional scandals in the U.S. about the use of so-called "professional" guardians.  See here and here for more on the recent history in New Mexico, including the summer 2017 federal indictment of key individuals .

According to news reports, part of Professor English's concern is about the dangers that can attend unnecessary secrecy about proceedings: 

“What struck me when I first looked at New Mexico, I was very surprised as a general matter that guardianship proceedings were not open to the public. That’s not consistent with how most other states address the issue,” he told the guardianship commission on Friday.

 

In New Mexico, guardianship proceedings are sequestered and closed to the public. The only publicly available record is a court docket sheet identifying the parties involved and a general list of the actions and filings in the case. But, in Missouri, where English lives, the public can attend hearings in which judges decide whether a guardian should be appointed for an incapacitated person. Typically, those placed under guardianship or conservatorships are elderly, those with dementia or Alzheimer’s or others who need help with their decision-making or finances.

 

He said the intent of the new reform laws would be to open guardianship proceedings to the public, unless the person for whom the guardianship is being considered asks for a closed hearing or a judge decides otherwise. “It’s very important that the public have some access to what’s going on in guardianship cases,” English told the guardianship commission. “At least be able to attend the hearing.”

For more on the hearings and possible changes in New Mexico laws and procedures, see New Reforms in Guardian Law Presented by the Albuquerque Journal's investigative reporter, Colleen Heid.  

November 20, 2017 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, November 17, 2017

Nursing Homes & Emergency Generators-Round One Goes to the SNFs

Recall that I had previously blogged about the impact of Irma on some nursing homes and how the Florida Governor had issued an emergency administrative rule requiring nursing homes to have emergency generators. The suit brought by facilities challenging the rule wasn't a particular surprise. The judge assigned the case ruled in late October in favor of the facilities. As reported in an article in the Wall Street Journal, the judge  "ruled against state efforts to force elder-care facilities to rapidly upgrade their generators by mid-November, siding with industry groups that argued the state’s time demands were unrealistic."  Florida Judge Rules Against Emergency Nursing-Home Generator Measures notes that in the lengthy opinion, the ALJ  explains “it is impossible for the vast majority of nursing homes” and assisted-living facilities to comply with the orders by the deadline."  The Governor's office indicated that it would appeal while also working with the Florida legislature regarding bills filed on this issue.  The article notes some facilities are already in compliance and that the objection was more about the timeline than the requirement.  Stay tuned....

 

 

November 17, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

"Evictions" of Nursing Home Residents Trigger Lawsuits

The issue of "evictions" in residential facilities for older adults has long been on my radar screen, and I was especially interested to hear (and read) news of a lawsuit initiated by the AARP Foundation Litigation (AFL) against a California skilled nursing facility and its parent entity following the facility's refusal to "readmit" an 82 year-old resident following her temporary hospital stay.  As reported by NPR for All Things Considered on November 13, 2017: 

[The Defendants] say that she became aggressive with staff and threw some plastic tableware. So Pioneer House called an ambulance and sent her to a hospital for a psychological evaluation. The hospital found nothing wrong with her, but the nursing home wouldn't take her back. They said they couldn't care for someone with her needs.  Jones protested his mother's eviction to the California Department of Health Care Services. The department held a hearing. Jones won.

 

"I expected action — definitely expected action," says Jones.  Instead, he got an email explaining that the department that holds the hearings has no authority to enforce its own rulings. Enforcement is handled by a different state agency. He could start over with them.

 

This Catch-22 situation attracted the interest of the legal wing of the AARP Foundation. Last year, attorneys there asked the federal government to open a civil rights investigation into the way California deals with nursing home evictions. Now, they're suing Pioneer House and its parent company on Gloria Single's behalf. It's the first time the AARP has taken a legal case dealing with nursing home eviction.

For more, read AARP Foundation Sues Nursing Home to Stop Illegal Evictions.  

My thanks to my always alert colleague, Dickinson Law Professor Laurel Terry, for sharing this item.  

November 17, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, November 1, 2017

LeadingAge: Hot Topics for Attorneys Who Advise Clients in Senior Housing and Service Industries

LeadingAge 2017 Hot Topics  for Lawyers Advising in Senior LivingThis week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel."  As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.  

But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions.  I'm sorry I did not have time to stay longer after the program, before heading to the airport.  They were very clear and interesting speakers, with healthy senses of humor.

The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.

Whew!  Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing?  The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.

On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents.   The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos.  Copyright rules and the growing efforts to ensure payments are the reasons.  

The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why.  For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.  

It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and  Health Care Communities" in 2016.  Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.   

November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 30, 2017

A Historical Look at Guardians for Minors and "Persons of Unsound Mind"

My research turned me to an interesting resource available in the public domain, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind.  The book was published in 1897.

Particularly in light of current issues about court oversight of guardians and conservators, it is interesting to see that even in the nineteenth century, states were struggling to decide how frequently fiduciaries should be required to make written reports of financial accounting.  Reporting only at the "end" of the appointment or at intervals of 5 years was sometimes permitted by statutes.  The treatise suggests that while annual accounts facilitate better money management by the guardian, frequent reports also served to "shift the burden to the ward, or other person assailing the account" to make a timely challenge to the report, or it will be presumed "correct." This comment seems to demonstrates the court 's reluctance to expected to be initiate oversight "unless" there was a complaint.  

October 30, 2017 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 26, 2017

NM Commission Submits Initial Recommendations for Improving State's Guardianship System

The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.  

As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.

The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including: 

  • Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
  • Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
  • Establish stringent reporting and financial accountability measures for conservators, including the following:
        1. require conservators, upon appointment, to sign releases permitting the courts
        to obtain financial documents of protected persons;
        2. require annual reports to include bank and financial statements and any other
        documentation requested by the court auditor, with appropriate protections
        to prevent disclosure of confidential information;
        3. require conservators to maintain a separate trust account for each protected
        person to avoid commingling of funds; and
        4. require conservators to maintain financial records for seven years.

The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."

Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.

The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study.  The deadline for the comments is November 8, 2017.

My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R.  Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!  

October 26, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 25, 2017

More on Guardianships

The ABA Journal ran an article as part of their daily news about some of the cases regarding guardians and questionable acts. Cases raise questions about adult guardianship and lawyer-hospital relationships  focuses on cases in Michigan and South Carolina.  "Cases in Michigan and South Carolina are raising questions about lawyers who receive guardianship appointments as a result of their relationships with hospitals." The story explains that in the Michigan case, the judge noted an agreement between the attorney and the hospital regarding filing petitions concerning certain patients as well as compensation from a third party (hospital).  The South Carolina case involved supposed conflicts of interest, according to the story, when a hospital attorney served as guardian. In addition to discussing the two cases in more depth, the article goes on to discuss the New Yorker article about guardianships in Nevada (see earlier blog posts) and reform activities there.

October 25, 2017 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Cremains -- Lost in Transportation

While I was supervising my law school's Elder Protection Clinic, we had several matters arising out of disputes over the bodies of loved ones.  Suffice it to say that each matter was "unique."  I even had an on-call expert, an attorney who decided to have a sub-specialty in the law of burying (or not burying) a body.  

The Washington Post offers an interesting story about cremains -- the ashes from cremation of an elderly woman in North Dakota  -- that went missing in the journey to the survivor.  The son's efforts to get answers, apologies, or "more," are documented well in Amy Wong''s piece "His Mother's Ashes Were Lost in the Mail. In his Search, He's Found only Frustration -- and Fury."    

October 25, 2017 in Consumer Information, Ethical Issues, State Cases | Permalink | Comments (0)

Wednesday, October 18, 2017

Voluntary Stopping Eating & Drinking (VSED) When Capacity Lacking?

You may have read recently about a woman who had an advance directive that addressed artificial nutrition and hydration. The SNF where she lived was hand feeding her, over her husband's objections. The trial court sided with the SNF and the state ombudsman who had argued that "state rules to prevent abuse required the center to offer residents three meals each day and provide help eating, if needed."  Can one provide in her advance directive that she refuses in advance oral fluids and foods at some point in the future? The Kaiser Health News article, Dementia Patient At Center of Spoon-Feeding Controversy Dies, explores the specific case as well as the issue.  The patient, as the title explained, died last week. 

Here's the issue illustrated in this matter.

At issue is whether patients with Alzheimer’s and other progressive diseases can stipulate in advance that they want oral food and liquid stopped at a certain point, hastening death through dehydration. It’s a controversial form of what’s known as VSED — voluntarily stopping eating and drinking — a small but growing practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, usually resulting in death within two weeks.  .... “The right to VSED is reasonably well-established, but it’s when a person isn’t competent that’s the issue,” said Paul T. Menzel, a retired bioethicist at Pacific Lutheran University in Tacoma, Wash., who has written extensively on the topic.

So in thinking about a person saying no to food and fluids, "VSED doesn’t require a law or a doctor’s approval. But the question of whether it’s possible for people who can no longer actively consent to the procedure remains ethically and legally unclear. That’s especially true for patients who open their mouths to accept food and fluids...." 

Have you looked at your state's laws to see if there is a position on this?  According to the article, almost 24 states have laws on "assisted feeding" some of which "specifically prohibit withdrawing oral food and fluids. Other states address only artificial feeding or are unclear or silent on the issue [and] ... Idaho — appears to sanction withdrawal of assisted feeding by a health care proxy" according to an expert quoted in the article. However, "Idaho state law also prohibits any form of assisted suicide and requires “comfort care” for patients if artificial nutrition and hydration is withdrawn. It’s not clear whether a request to halt assisted feeding would be honored" said an expert on Idaho's statute on Medical Consent and Natural Death Act.

 

 

October 18, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Friday, October 13, 2017

How Much Should Guardians be Paid?

The National Guardianship Association takes the understandable position that "guardians are entitled to reasonable compensation for their services," while bearing in mind "at all times the responsibility to conserve the person's estate when making decisions regarding providing guardianship services" and in setting their fees.  See NGA Standard 22 on Guardianship Service Fees

Should there be "schedules" for fees, such as hourly fees, or maximum fees? Modern courts often struggle with questions about how to determine fees, and some states, such as Pennsylvania,  have a fairly flexible list of common law (not statutory) factors for the court to consider.  

In a April 2017 trial court opinion in Chester County, PA, for example, the court reviewed $54k in fees for the lawyer appointed to serve as guardian, and another $13k in fees for an attorney the guardians had hired.  According to the court, "Neither had sought leave of court prior to paying these sums out of the principal of the estate; the court learned of this when its auditor reviewed the annual report wherein these payments were disclosed."  The ward in question was 87-years old and a resident in a skilled nursing faciility, with dementia and other health issues.  The court struggled with the bills, commenting the format used was "inordinately difficult to follow" and at least on first review seemed "high for ten (10) months."  For guidance in evaluating the bills, the court did "two things.  It first searched the dearth of cases available for any guidance."  It also called the individuals to discuss the billing formats and learn more about the work completed.  

The Pennsylvania precedent was almost exclusively unpublished opinions, often from trial courts.  The Chester County court recounted some of the history of guardianships, from English times to colonial courts to the present, concluding, "In any event, no reported decisions have been located concerning professional compensation of guardians of the persons.  Apparently, society had no need of their services until more recent times."  

Ultimately, Chester County Court of Common Pleas's Judge Tunnell approved the fees, finding "a number of untoward events which transpired during the year in question," including a serious injury the ward sustained from a fall in the nursing home, additional health related concerns, the decision to relocate her to a different nursing home, and difficulties in selling the home that had remained empty for more than year.  The case had a history of accounting disputes, as evidenced by a 2013 decision by the same judge, although it did not appear anyone had challenged the latest fees reviewed sua sponte by the court  in the 2017 decision.  

In another Pennsylvania opinion, this time from an appellate court but also unpublished, the court observed, apparently with approval, that in Allegheny County, the Guardianship Department in the Orphan's Court uses  "court investigators" to review guardians' requests for payment of fees from the incapacitated person's estate.  See e.g., In re Long, Superior Court of Pennsylvania, February 14, 2017 (not officially reported).  

I'm curious whether our readers have thoughts on "scheduled" fees for guardians?  

October 13, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Thursday, October 12, 2017

Daughters' Hidden Video Camera In Mother's Nursing Home Documents Caregiver Abuse; 10th Circuit Affirms $1.2 Million Damage Award

The 10th Circuit in Racher v. Westlake Nursing Home Limited Partnership, d/b/a/ Quail Creek Nursing & Rehab Center, affirmed an award of $1.2 million in compensatory damages to the estate of  Mrs. Mayberry,  a 90+ year old resident.  Key evidence included five video recordings, from a camera hidden in the resident's nursing home room by her daughters, that showed:

... [Employee] Gakunga slapping Mrs. Mayberry in the face with latex gloves, wadding up the gloves, stuffing them in Mrs. Mayberry's mouth, and forcibly holding them there as Mrs. Mayberry attempts to push Gakunga's hand away. . . . .  [A second employee] Kaseke is seen in the videos watching this take place. . . . . The videos then show Gakunga and Kaseke roughly lifting Mrs. Mayberry from her wheelchair into bed and Gakunga pushing on Mrs. Mayberry's face in what appears to be an attempt to make her lie down. . . . One clip shows Gakunga pointing her finger at Mrs. Mayberry and apparently scolding her or perhaps threatening her. . . . Finally, the video clips show Gakunga “performing some sort of compressions with both hands to [Mrs. Mayberry's] torso.” . . . .  Plaintiffs assert that this action was intended to force Mrs. Mayberry to empty her bladder so the caretakers would not have to change her diaper as often. . . . .  Quail Creek and the caretakers denied any knowledge of this practice, but acknowledged that there was no medical justification for the action.  

The daughters testified their mother went downhill as a result of the incidents that occurred between February and early April 2012 and that Mrs. Mayberry died in July 2012 "just three months after the abuse was discovered."

One issue on appeal was whether Oklahoma's "statutory limitation on noneconomic damages" of $350,000 was mandatory. Apparently the statutory cap was raised for the first time in a motion to "alter or amend the judgment," 28 days after the judgment was entered in the case and more than a month after the jury trial concluded.   In its September 28, 2017 opinion, the 10th Circuit had an interesting analysis of the interplay between federal rules of civil procedure and the need to "predict" state substantive law in a diversity case,  and "agreed with the plaintiffs that the cap is an affirmative defense that [defendant nursing home] waived."  

October 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)