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)

Wednesday, October 11, 2017

Are Guardianship Court "Oversight" Problems Pervasive?

 During the last several years, I've received calls from around the country about possible guardianship "oversight" concerns. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I've been getting more calls. The question arises: Is there a pervasive problem with court-appointed guardians for older adults in the United States?  

In my opinion, the answer is "no, not pervasive."  At least, that's my answer if the definition of pervasive is "universal," or omnipresent, or rife, or widespread. In the 20+ years I've been working in elder law, I've unfortunately reviewed a lot of cases of exploitation, but it is comparatively rare that I've been asked to examine a court-monitored guardianship where there was a problem created by inadequate attention by the courts, much less active misconduct by the court or agency. Granted, that is just one law professor's experience.

Still, in my opinion, the oversight problems that do exist within the U.S. are significant, periodic, sometimes recurring or persistent, and often have common elements.  The issues can exist in any county court or fiduciary administrative system. Historically, these courts -- sometimes called probate courts, fiduciary courts, surrogate courts, or orphans courts -- depended on the guardians for management of all issues, once the appointments were made. The judges trusted their appointees to take their fiduciary responsibilities seriously. But, as is sometimes said in international relations, the problem can be how best to "trust, but verify" proper behavior. With more elder boomers, there can be increased need for guardians, and thus more potential for guardians to be monitored.

  • For example, in Maricopa County, Arizona, an investigative news series, that began in 2008 with the reporting of Laurie Roberts for the Arizona Republic, described a number of mishandled older adult guardianships.  In some instances, the family members were so busy arguing about money, that the incapacitated elder was ignored, while his or her estate was diminished to pay fees.  Sometimes the question was whether a "full" guardianship was even necessary.  The problems, once investigated not just by journalists but by the courts, resulted in changes in Arizona guardianship law.
  • In Palm Beach County, Florida, complaints about appointment of a particular individual as guardian in a large number of cases, focused on conflict of interest and claims of favoritism by the court, complaints that came from a number of families. Eventually, in one case challenging the system,  a jury reportedly awarded more than  $16 million against two West Palm Beach attorneys for "breach of fiduciary duties."  The complaints also led to state investigations of Florida's entire oversight systems, and brought three years of legislative changes to Florida guardianship laws.
  • Most recently, two co-founders of a nonprofit guardianship company, Ayudando Guardianship, in Bernalillo County, New Mexico were indicted in federal court in July 2017 with criminal charges including conspiracy, mail fraud, aggravated identity theft, and money laundering.  The company was the appointed fiduciary in hundreds of cases. 

Especially when the Clark County, Nevada cases are included in this list of recent challenges to guardianship oversight systems, concerns about proper and objective oversight are real; without a equally real commitment to more careful selection, training, monitoring and accountability for guardians, the problems can be predicted to increase as the baby boomer generation of seniors get to their 70s, 80s, or 90s.  In 2016, the GAO for the United States responded to a U.S. Senate Special Committee on Aging's request for data on "the extent of abuse by guardians," and concluded that "courts lack comprehensive data on older adults in guardianships and elder abuse by guardians, but some courts have limited information."  Unreliable data certainly leaves open the potential for the occasional problems to become pervasive problems.    

Continue reading

October 11, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)

Tuesday, October 10, 2017

Update on Florida Nursing Homes Post-Irma

A recent story reports on the Florida governor's statement calling on a state Constitution Revision Commission "to include provisions to protect residents of nursing homes and assisted living facilities." Scott Wants Nursing Home Rules In Constitution  reports that the Florida Governor is calling on the Commission "to consider adding 'permanent measures to put patient safety first.'" The constitutional amendments will be voted on in the November, 2018 election.

Meanwhile, the nursing home in Hollywood Florida where the deaths occurred filed suit challenging the state's moratorium on admissions as well as suspension from the state's Medicaid program. Broward Nursing Home Expands Lawsuit Against State  explains that the facility is seeking an injunction.

Stay tuned, there's a hearing on the facility's motion before the end of the month.

October 10, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 4, 2017

New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships

We've posted often on the Elder Law Prof Blog about problems with guardianships for older adults, highlighting reports from Nevada, Florida and Arizona, for example.

The New Yorker Magazine offers  "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:

Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights. 

Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.  

In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”

There are fundamental issues at the heart of this kind of history.  Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself.  But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.     

My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly. 

October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 2, 2017

"Probable Cause" Prevents Son-in-Law/Agent from Suing for Malicious Prosecution in Elder Fraud Case

The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds.  It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."  

Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners.  A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law.  The mother-in-law later challenged the transaction as contrary to her understanding and intention.

Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts.  They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.  

As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.

Not so fast.  Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process. 

Continue reading

October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, October 1, 2017

The Black, White & Gray of Consent to Sexual Relations in Long-Term Care

Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's  decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017.  Not a violent contact and apparently not one involving physical or mental injury.  But clothing was removed and fluids were later documented.  Now residents are being transferred and more than 70 employees will reportedly be laid off. 

As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities.   A criminal investigation found no grounds for prosecution.  A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports.  The actual closure action was made voluntarily by Genesis.

Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:

  • Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"? 
  • How far must a LTC provider go to prevent intimate contact between residents?
  • After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
  • How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?  
  • Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?

Continue reading

October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 26, 2017

Nursing Home Abuse: Reporting to Law Enforcement

Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident.  The Long Term Care Community Coalition  (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates

2017 Updates:
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:

https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/GuidanceforLawsAndRegulations/Downloads/Advance-Appendix-PP-Including-Phase-2-.pdf.

The overview explains that

The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.

The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.

The brief can be downloaded as a pdf here.

September 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases | Permalink | Comments (0)

Rental Housing and Seniors -- the Live-In Care-Giver Problem?

Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment.  The landlord was fully aware of the situation.  Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time.  However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.  

What's the problem?  When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her.  Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.

Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease.  In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment.  The landlord didn't want a "demanding" resident!

The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.  

I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care. 

 

September 26, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Tuesday, September 19, 2017

Elder Homicides Webinar

The DOJ's elder justice initiative is offering a free webinar on Monday September 25, 2017 at 2 p.m. edt on The Forgotten Victims: Elder Homicides. Here is a description about the webinar

Elder homicides often go undetected, and investigating them requires a multi-pronged approach. In this webinar, learn about the victims, the offenders, and the crime scenes. How does the medical examiner’s information contribute to solving these high-profile, difficult cases? Join the webinar to discover how research has advanced the successful investigations of these crimes. 

To register for the webinar, click here

September 19, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, State Cases, Webinars | Permalink | Comments (0)

Monday, September 18, 2017

"Barn Door" Rule-Making and Disaster Response

Over the weekend, Florida Governor Rick Scott announced he was "directing" state agencies to "issue emergency rules to keep Floridians safe in health care facilities during emergencies."  Arguably, this an example of  locking the barn door after the horses have escaped.  On the other hand, especially with another hurricane already looming, certainly no political leader wants to be seen as doing nothing.

There are some important questions -- that can perhaps be translated into lessons -- emerging from the most recent tragedy with eight nursing home residents perishing from heat related complications in Broward County Florida after Hurricane Irma.  

1. Should States Mandate Specific Equipment?  For example, Governor Scott is seeking a rule that mandates "ample resources" including a "generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for a least 96-hours following a power outage."   It should be clear, certainly after Katrina (2005), Harvey (2017) and Irma (2017), that some of the biggest dangers of extreme weather events ares not just the wind or rain or fire or other immediate impact, but the consequences of loss of power or other critical resources.  

2. Can Inspectors Better Assure Compliance with Safeguards?  Governor Scott's demands focus not just on the care facilities' obligations, but on the role of state and local officials to have a system of checks and balances to increase the likelihood the safeguards are actually in place and operable, and not "just" a written plan for the future.

3.  What Safeguards Were Effective At Similarly Situated Facilities?  News articles report some push back from providers to Scott's measures, who seem to be arguing feasibility and cost. But, certainly there were providers, faced with the same challenges as the Broward County nursing home, who were successful in protecting their residents.  Perhaps the more important lesson to learn -- and learn quickly -- is what was affordable and effective?  

Also, I think that there are some questions that can be raised about whether and how family members and the larger community might be able to help as part of a plan for disaster preparedness.  Certainly not all, and perhaps not even most, families will be able to help in providing post-disaster assistance including temporary shelter.  But, I think at a minimum, families would want to know what steps they might take to be part of the safety plan and post-event response. 

 

September 18, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Fla Supreme Ct Permits "Ratification" of a Ward's "Invalid" Marriage

In a case with sad facts, the lower court in Smith v. Smith certified a question to the Florida Supreme court as follows:

"Where the fundamental right of marry has not been removed from a ward [under state guardianship law], does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?"

During the guardianship proceeding at issue, apparently the original court had not specifically addressed the right to marry.  In light of that fact, in its ruling on August 31, 2017,  the Florida Supreme Court answered a slightly different issue, because it viewed the "right to marry" as being tied to the "right to contract," which had been expressly removed from the ward.

The Florida Supreme Court ruled that "where the right to contract has been removed [under Florida guardianship law], the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect."  

Counsel representing the wife of the incapacitated "husband," argued that, in effect, such ratification had already happened, during a proceeding where the guardianship judge had made comments treating the marriage as "fact."  The Supreme Court disagreed:

Although the invalid marriage between Glenda and Alan is capable of ratification under [Florida law], it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order ratifying the marriage or conducting a hearing to verify that the ward understands the marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court's statements here were not sufficient to approve the marriage. However, the parties are not foreclosed from seeking court approval based on our decision today.

The ward in the Smith case was not alleged to be older or elderly; rather, the determination of his lack of legal capacity followed a head injury in a car accident. Recognizing the larger implications about validity of a marriage occurring during a guardianship, however, the Real Property Probate Section and the Elder Law Section of the Florida Bar and the Florida chapter of the National Association of Elder Law Attorneys submitted amicus briefs, arguing generally in favor of a ward's right to marry and urging the Supreme Court to approve post-marriage ratification by the guardianship court. 

September 18, 2017 in Cognitive Impairment, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)