Wednesday, July 20, 2016
I wanted to make sure you didn't miss these developments.
First, Colorado voters in November may see a ballot initiative on physician-aided dying. Proponents are collecting signatures according to an article in the Denver Post, Right-to-die initiative headed for Colorado’s November ballot. It's not a slam-dunk however. The article notes that there is opposition to the proponents efforts to place the initiative on the ballot. Proposed legislation failed previously. Stay tuned.
Second, in case you missed it, on June 30, 2016, the New Mexico Supreme Court issued its ruling in Morris v. Brandenburg, a physician-aided dying case that has been making its way through the appeals process. The court held "we decline to hold that there is an absolute and fundamental constitutional right to a physician’s aid in dying and conclude that Section 30-2-4 is not unconstitutional on its face or as applied to Petitioners in this case." The court relied heavily on the U.S. Supreme Court opinion in Washington v. Glucksberg and found no specific reasons under the NM Constitution to depart from that precedent since physician-aided dying is not a fundamental right. Here's an excerpt from the opinion:
New Mexico, like the rest of the nation, has historically sought to deter suicides and to punish those who assist with suicide, with limited exceptions in the HCDA and the Pain Relief Act. However, these exceptions occurred as a result of debates in the legislative and executive branches of government, and only because of carefully drafted definitions and safeguards, which incidentally are consistent with the safeguards urged by Petitioners. Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to those previously identified in paragraph 35 of this opinion, the following reflect other safeguards relevant to our analysis... These and other provisions of the UHCDA further many of the government interests recognized by the Glucksberg Court as unquestionably legitimate, and which made Washington’s ban on physician aid in dying reasonably related to their promotion and protection…Indeed, if such exceptions and carve-outs to the historical national public policy of deterring suicide properly exist, they are certainly borne of the legislature and not the judiciary.
A summary of the opinion appeared in the July 13, 2016 eBulletin (full disclosure-I'm one of the editors).
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Tuesday, June 21, 2016
On June 15, I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders. It was very good. Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation. Here were some of the "take away" messages I heard:
- "Age 78" -- why might that be important? Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch." As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment" creates the "happy hunting ground" for the scammer.
- "I make 'em feel like they are Somebody again." That's how one scammer explained and rationalized his approach to older adults. By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again. That "reaction" by the older consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money." Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
- "Psychological reactives." That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish." An indirect, oblique approach may be necessary to help the victim understand. One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses.
- "Financial Institutions are increasingly part of the solution." According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or by making "all individuals" who suspect such fraud mandatory reporters. Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.
The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse. One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation."
June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)
Thursday, June 16, 2016
A recent court decision in New York details the extraordinary efforts made by an individual to take advantage of a former co-worker as she aged and became affected by dementia. One of the tools of abuse was a Power of Attorney, dated 2010, that he reportedly used as his authority to isolate her from family members. The court found that he was able to then manipulate her as he controlled her finances, having the woman sign checks he later claimed were "gifts," for purposes such as to "defray costs of his visit to France to see his daughter," "to help him buy a house in Normandy," or to cover "the costs of his art exhibit in Paris." Ultimately, the court concluded that the respondent/defendant, who under New York law was in the role of fiduciary as an appointed agent, could not satisfy his burden of proof to show the alleged gifts were free from undue influence.
The trial level court entered an order finding him liable for $122,000 plus costs and interest, and restraining him from "transferring, using, spending or hypothecating any of his assets" until the judgment was paid. See Matter of Mitchell, 2016 NY Slip Opinion 50853(U), decided June 3, 2016 by the New York Supreme court, Kings County.
That is the "befriender" side of the issues. However, the court also addressed the possibility of a will executed in 2013. The discussion of the will brings into play the role of an attorney who was called by the defendant to testify at the hearing on the gift transactions, apparently in an attempt to bolster his arguments about the woman's capacity. That plan backfired.
The way it all plays out through the testimony, as recounted by the judge in his opinion, raises important questions about what could or should the lawyer have done differently.
The court wrote:
Wednesday, June 15, 2016
In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower." Her experiences with retaliation -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.
In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:
An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services]. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.
Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."
Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring. She cautions:
I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.
It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....
When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.
Tuesday, June 14, 2016
In Florida, the number of verified cases of elder abuse and neglect has climbed 74 percent since 2011, according to the Florida Department of Children and Families. In 2015, the statewide total was 2,525.
More than 800 people have been charged with elder abuse and neglect in Florida in the past five years, according to the Office of State Courts Administrator. More than 370 have been convicted or sentenced.
The story also offers data on a nationwide basis and discusses the difficulties in prosecuting elder abuse cases, such as the victim's close ties to the perpetrator or cognition issues of the victim
The accompanying sidebar provides statistics, Elder Abuse in Florida by the Numbers for the past 5 years, broken down by verified cases of elder abuse or neglect and criminal elder abuse or neglect.
Friday, June 10, 2016
Filial Friday: Georgia Supreme Court Rules that No Equitable "Right of Access" is Created by Filial Support Law
Adult daughter Tamara Williford filed a petition for equitable relief in February 2015, seeking a Georgia court's order that her father's current wife must allow her access to her father. Williford alleged that her father, Tommy Brown, was in poor physical health, unable to leave his home, but in good mental condition. She said she had talked with him regularly by telephone and in person, until his wife prevented her from doing so.
Apparently Mrs. Brown, Tommy's wife, was named as the only defendant in the lawsuit, and responded by denying Williford was a biological child, denying her husband was in poor health, and denying that he wanted to see Williford.
In June 2016, the trial court dismissed Williford's petition, and she took a timely appeal to the Georgia Supreme Court. Oral argument was held in February 2016.
In Williford v. Brown decided May 9, 2016, the Georgia Supreme Court (pictured above) unanimously affirmed the dismissal, finding that there was no statutory or other legal grounds alleged that would support the "equitable remedy" sought by Ms. Williford. Specifically, the court rejected the argument made on appeal that Georgia's version of a filial support law, OCGA Section 36-12-3, provided grounds for relief. That statute says:
The father, mother, or child of any pauper contemplated by Code Section 36-12-2, if sufficiently able, shall support the pauper. Any county having provided for such pauper upon the failure of such relatives to do so may bring an action against such relatives of full age and recover for the provisions so furnished. The certificate of the judge of the probate court that the person was poor and was unable to sustain himself and that he was maintained at the expense of the county shall be presumptive evidence of such maintenance and the costs thereof.
The court concluded that this section "does not purport to confer on adult children a right to unrestrained visitation" with parents. "Moreover, Ms. Williford did not allege in her petition that Mr. Brown is a 'pauper,' much less that she believes that Hart County has or will ever have to maintain him at county expenses and then pursue an action against her."
In a footnote to the ruling, the court observes that the daughter "did not alleged and does not claim on appeal" that the wife prevented her husband "from leaving his home or communicate with persons other than Ms. Williford." Therefore, the court said it was not necessary to address whether a theory of "general habeas corpus" where a person was allegedly held "incommunicado illegally and against his will."
This seems like a very sad case. One Georgia elder law attorney suggests that "if the ruling in this case disturbs you, then perhaps it is a good time to call your local legislator."
June 10, 2016 in Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 9, 2016
Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us. Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.
Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition. He writes:
In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.
Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.
Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:
Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).
On free speech implications, he writes:
The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.
And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:
State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.
The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.
June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, June 8, 2016
A recent New York Times article sheds light on a frequent topic I've encountered in my own research on the convergence of elder law, contract law, and nonprofit organizations law: when will a nonprofit nursing home or similar senior living operation be "allowed" to convert or sell-off to a for-profit operation? And what if the "real" plan is to convert to an entirely new type of for-profit operation?
The potential for conversion appears to be the heart of a dispute over two nonprofit nursing homes in Manhattan, where State and City authorities are seeking to prevent their purchase by a for-profit company known as Allure Group. From the New York Times:
Citing misrepresentations and broken promises, the New York State attorney general’s office is seeking to prevent the purchase of two nursing centers by a company that was involved in transactions that put a Manhattan nursing home in the hands of luxury condominium developers....
“Allure made clear and repeated promises to continue the operation of two nursing homes for the benefit of a vulnerable population — promises that proved to be false,” said Matt Mittenthal, a spokesman for the attorney general, referring to Rivington House and a nursing home bought by Allure in the Bedford-Stuyvesant section of Brooklyn, which were closed within a year of a court petition’s being filed. “Until we conclude our investigation, we will object to Allure buying additional nursing homes.”
In New York, any nonprofit seeking to sell its assets must petition a state court for approval; the attorney general reviews all such requests and can object if there are grounds to do so. The court has the final say....
Monday, May 30, 2016
It's Memorial Day. Perhaps you are sharing a picnic with family and friends. You might need a topic to spice up the conversation amid potato salad and barbecued hot dogs, right? How about this...
Recently I've been hearing from lawyers who are commenting on recent telephone calls or emails they've received from a West Coast TV promoter, inquiring as to whether they have clients who might be interested in appearing on a new television reality show. Or, maybe the lawyer would want to participate? Here's a description of the proposed show from one of the lawyers who was contacted by a rep of the show:
"It will feature family members disputing who will inherit heirlooms, historical artifacts, or valuable collections. The show will provide a professional mediator free of charge to help the family members resolve the dispute."
I guess I shouldn't be surprised. We've had some 20 seasons of "Judge Judy" and her brethren. I have a vague memory, going back to childhood, of an early iteration of "Divorce Court" -- with lots of shouting. While living in the U.K., I used to occasionally catch a show about searches for missing heirs and another about family confrontations with "hoarders." (And oh how sad that last one was.) So, I guess it isn't a huge jump to a show that arguably sensationalizes family fights over old family "stuff." Perhaps it is even a logical next step from Antiques Roadshow, the hugely popular, and fairly dignified, PBS program.
By coincidence, just as I had finished typing the above paragraphs, I received my own communication from a developer of the proposed show. Turns out that the show is pitched as a "bigger" concept than just estate disputes. Mark Dalbis, from Atlas Media Corporation, and who seems like a nice guy in his email, writes:
Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.
Thursday, May 26, 2016
Senior residential care provider Life Care Centers of America is the focus of recent legal news, including:
- KOAA TV 5 News: Colorado Jury Awards $5.5 million in wrongful death suit against Life Care Center of Pueblo.
- Chattanooga Times Free Press: Settlement May be Brewing in Government's Longtime Federal Case alleging False Claims - Billing Practices by Life Care Centers of America
Tuesday, May 24, 2016
On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community. In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children." The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.
On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of] 60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.
The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:
Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.
The finding of breach appeared to have been predicated on the contract's specified grounds permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.
Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.
In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers. Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.
Monday, May 23, 2016
California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law
I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S. For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs. At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims. This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc. In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:
We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist. What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.
The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."
The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities. The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.
This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act.
Friday, May 13, 2016
Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?
My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients. This week the ABA Journal also linked to the AP story, plus tied the statistical reports of a nation-wide increase in complaints about evictions, rejections and discharges to one man's struggle to return to his California care center following what should have been short term hospitalization for pneumonia.
The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals. But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture. Anderson experienced a severe brain injury at age 55 following a heart attack, but his younger age, lack of "private pay resources," and a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.
The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources. Certainly there are many -- and probably too many -- individuals in facilities when they could be maintained at home if there was more funding to supplement family-based care.
At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care. It is about more than mere eviction, discharge and rejection statistics. The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities. But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.
My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.
Sunday, April 24, 2016
Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25 minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond. (You may have to give this time to load, as it is an embedded video file).
For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse."
April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, April 11, 2016
I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old. Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements. See e.g. here and here. However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.
In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case. Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.
In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system." Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.
By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million. The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015.
The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.
Wednesday, April 6, 2016
A specialized area of "law and aging" is accountability for retirement investments, including public employee pension funds. In Massachusetts there has been a long feud between the Boston Globe media company and the Massachusetts Bay Retirement Authority (MTBA) Pension Fund over access to pension records, especially after the loss of some $25 million in employee retirements assets following the collapse of a hedge fund holding MTBA money. Last month, a Massachusetts judge rejected key arguments by the MTBA's that the records in question were not subject to state public records law:
"The Court will ALLOW the Globe's motion for summary judgment and DENY the Retirement Board's cross-motion. The Retirement Board's preliminary assertions that the Supreme Judicial Court has already resolved the central question of statutory interpretation in the Board's favor, and that in any case the Globe may not press its claims because it failed to join other necessary parties, are both incorrect. On the merits, the Court concludes that the Board does indeed receive public funds from the MBTA, and thus that the Board's records are now subject to mandatory disclosure under the public records law unless they fall within one of the statutory exemptions. The Board's assertion that the 2013 statutory amendment only applies to records created after its effective date is also incorrect."
For more on the reasoning, see Boston Globe Media Partners, LLC v. Retirement Bd. of Massachusetts Bay Transp. Authority Retirement Fund, 2016 WL 915330 (Superior Ct. Suffolk County, Mass, March 9, 2016).
See also Boston Globe media reports, including Judge Calls for Open MBTA Pension Files, detailing some of the related allegations by whistleblower Harry Markopolos and Boston University finance professor Mark Williams. See also a consulting firm's March 9, 2016 Report for the MBTA that concluded MBTA had accurately reported accounting data on the pension funds during the years in question.
Monday, April 4, 2016
Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis. As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses. As reported by the Las Vegas Review-Journal in an April 1, 2016 article:
An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.
District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.
Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.
But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.
For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices." The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.
Friday, March 25, 2016
The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.
The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws." She concludes:
The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.
In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.
In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."
The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment. "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a). Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."