Thursday, March 6, 2014
In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate. Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law."
The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."
The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27, allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy. The allegations go back to 2007, with multiple continuances of the scheduled trial dates.
The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee. The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough." The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."
Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour."
The appellate opinions in the cases are fairly dry. In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01.
The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.
Thursday, February 27, 2014
As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b). The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus. Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.
The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge. There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available. So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:
- What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law.
- Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.
- Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts.
In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."
In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide. Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity."
What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide. The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die. We cannot just stick our heads in the sand and say "this case isn't likely to happen again."
The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.
Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas. As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law.
Wednesday, February 26, 2014
AARP recently launched a new multi-state caregiving advocacy campaign, with nearly every AARP State Office involved. Working with governors, state legislators, other policymakers and community partners, we’re determined to advance policy options that will help family caregivers. Two significant components of the campaign are:
- The Caregiver Advise, Record, Enable (CARE) Act Caregiver Advise, Record, Enable (CARE) Act, and
- The State Plan in Support of Family Caregivers, also referred to as the Caregiver Resolution.
The Caregiver Advise, Record, Enable (CARE) Act.
- In Oklahoma SB 1536 – the Oklahoma version of the CARE Act – just passed the Senate and will be heard in the House soon. Meanwhile, Governor Mary Fallin declared this month as “February Caregiver Month” to honor the state’s 600,000 family caregivers.
- AARP Hawaii, is urging the Senate Judiciary Committee to pass Senate Bill 2264, the Hawaii equivalent of the CARE Act. AARP members in Hawaii are now contacting members of the committee asking them to support the 169,000 family caregivers in the state by passing Senate Bill 2264.
By passing the CARE Act these states will ensure that:
The name of the family caregiver is recorded when a loved one is admitted into a hospital or rehabilitation facility.
The family caregiver is notified if the loved one is to be discharged to another facility or back home.
The facility must provide an explanation and live instruction of the medical tasks – such as medication management, injections, wound care, and transfers – that the family caregiver will perform at home.
Last week I blogged about tax questions facing some nonprofit senior living operations, especially nonprofit Continuing Care Retirement Communities (CCRCs). This week, we pass on news of a federal court suit filed by residents of a for-profit CCRC, challenging the company's accounting and allocation of fees, especially entrance fees, paid by the residents.
Residents of Vi of Palo Alto (formerly operating in Palo Alto as "Classic Residences by Hyatt") in California are challenging what could be described as "upstream" diversion of corporate assets to the parent company, CC-Palo Alto Inc. They contend the diversion includes money which should have been protected to fund local operations or to secure promised "refunds" of entrance fees. Further, the residents allege the diversion of money has triggered a higher tax burden on the local operation, a burden they allege has improperly increased the monthly maintenance fees also charged to residents. According to the February 10, 2014 complaint, Vi of Palo Alto is running a multi-million dollar deficit and the residents point to the existence of actuarial opinions that support their allegations. The complaint alleges breach of contract, common law theories of concealment, misrepresentation and breach of fiduciary duty, and statutory theories of misconduct, including alleged violation of California's Elder Abuse laws.
Representatives of the company deny the allegations, as reported in detail in Senior Housing News on February 23. A previous resident class action filed in state court against a Classic Residence of Hyatt CCRC, now called Vi of La Jolla, also in California, settled in 2008.
Thursday, February 13, 2014
In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice. Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter. Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest.
On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini. News reports point out that the court order was issued on the one year anniversary of her father's death. The parties had been under a gag order. Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices.
My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.
My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a "Face Book" approach to building momentum for social change and law reform.
The National Senior Citizens Law Center, with offices in California and D.C., has used its close observation of laws regulating "assisted living" across the U.S., to call for stronger rules in California, on the ground that "California lags far behind" in adopting moderns standards for quality of service and care.
NSCLC's latest report, "Best Practices in Assisted Living: Considering Potential Reforms for California, coauthored by Eric Carlson and Gwen Orlowski, is available on their website, along with the latest news on hearings before California legislative bodies on assisted living regulatory issues.
Wednesday, February 12, 2014
Does your state have a statutory cause of action for "elder abuse?" While all 50 states have some form of older adult protective service legislation that authorizes state authorities to investigate and intervene when reports are made of suspected abuse, not every state recognizes the right of the affected individual to seek damages or other relief from the perpetrator by proving violation of those same laws. In states that do recognize a private right of action, the statutory grounds may provide a clear set of elements for proof of abuse, neglect, abandonment, or financial exploitation, thus supplementing the common law, and may also provide the prevailing party (sometimes limited to prevailing plaintiffs) with a right to recover attorneys fees.
California is probably the state with the best known statute authorizing private suits, including a right to seek attorneys fees, at Cal. Welf. & Inst. Code Section 15657 et seq. California's law was first adopted in 1991 as the Elder Abuse and Dependent Adult Civil Protection Act.
However, the history of application of California's law has not been trouble-free. In "Why Many Meritorious Elder Abuse Cases in California Are Not Litigated," (Winter 2013 Student Note, University of San Francisco Law Review), the author identifies several factors negatively affecting the likelihood of victim recovery, including lack of counsel willing to take cases, evidentiary issues such as confusion over burdens of proof, conflict within the victim's family affecting the lawyer-client relationship, and pressures to change or limit relief urged by institutional defendants.
Thursday, February 6, 2014
What are "limited license legal technicians" or LLLTs? As defined by the Supreme Court of Washington in an order issued in June of 2012, LLLTs are individuals who achieve certification through a new state program, authorizing them to provide specific legal services within specific substantive areas of law and law-related practice.
Why create the LLLT alternative, especially in a country and during an economy where there are, arguably, more than enough underemployed lawyers? As the Washington Supreme Court carefully details, the current civil legal system "is unaffordable not only to low income people but, as a [2003 state study] documented, moderate income people as well...." For low income people, the "underfunded civil legal system is inadequate" to meet their very real needs. For many who are moderate in income, "existing market rates for legal services are cost-prohibitive." A new means of meeting public need is warranted, says the Court.
Why is a system of licensing LLLTs in the State of Washington potentially very significant to the practice of Elder Law? Washington has identified four areas of unmet civil law needs: Family Law, Immigration, Landlord/Tenant, and... yes, Elder Law.
Very interesting! The first practice area to be certified in Washington will be "Domestic Relations," with the Limited License Legal Technician Board expecting to begin accepting applications for a licensing examination in late summer or early fall of 2014. No indication yet on when "Elder Law" LLLTs might be certified. In the roll-out design, applicants must first satisfy threshold educational standards, including holding at least an associate level degree, plus 45 credit hours at an ABA-approved program (which, for the moment at least, means an ABA approved law school). Details on the certification process are available on the Washington State Bar Association's website, here. The University of Washington's School of Law has announced its "inaugural program" for LLLTs in family law to begin in the winter quarter of 2014.
While I suspect this movement might make existing Elder Law attorneys a bit nervous, my own research points to the very real need for more widely available, trustworthy legal advice. For example, Penn State Dickinson law students, with financial support of the Borchard Foundation's Center on Law and Aging, helped me to conduct focus groups drawn from a wide range of income, race, ethnicity and gender orientation, from locations all across Pennsylvania. In English and in Spanish, in inner cities and rural senior centers, we asked about their views and experiences with accessing legal assistance with Social Security, Medicare, Medicaid, insurance and other legal questions of concern to older persons. As summarized here, fear of the cost of seeing a lawyer, and the difficulty in finding free or affordable attorneys who were "trustworthy," were concerns clearly raised in each of the focus group sessions. That study pointed to the need for elder law specialists -- but not necessarily to a need for "just" Elder Law attorneys.
Big thanks go to Penn State Dickinson Professor Laurel Terry, our in-house guru on all things cutting edge in the practice of law, for sharing with me the latest materials on Washington's LLLT program.
Thursday, January 30, 2014
Recently I received a communication from a professional agent, the head of a nonproft guardianship organization, and someone I have watched in action for eight years. He and his team of carefully supervised agents work on behalf of elderly clients, disabled persons, and family members to handle financial matters. They are paid modestly, on a sliding scale, based on the client's income or estate. Sometimes they are operating as the court-appointed guardians, while other times their authority was granted by the principal through a POA, often with the cooperation (and sometimes the gratitude) of the family.
This professional reported to me that they "are having increasingly difficult times using our authority for legitimate purposes, to the point where we have to subpoena information from banks as the guardian, because they will not accept our appointment." Further, he reports "some banks are not honoring our POA or are adding unreasonable burdens, not required by law, leaving us unable to assist an older person."
Here is an experienced agent, who is trying do the job as a fiduciary in a highly professional manner. On the other side of the aisle are banks and other financial institutions, who have become understandably "gun shy" because of increasingly high profile cases of "bad" agents -- often family or "friends" -- who have misused their authority.
Well, as you might guess, this very topic has generated a timely CLE program! "Dealing With Financial Institutions in Estates, Trusts and with POAs" is the title of a half-day program sponsored by the Pennsylvania Bar Institute that will take place at the following dates and times:
- Tuesday, February 4, 2014, from 9 to 1:15, in Philadelphia, PA
- Wednesday, February 26, 2014, from 9 to 1:15 in Pittsburgh, PA
- Monday, March 3, 2014, from 9 to 1:15, in Mechanicsburg PA
- Live Webcast on Monday, March 3, 2014 via webcasts.pbi.org
The program will focus on "bridging the divide" between financial institutions and agents, to help both sides better understand the powers and limitations conferred by law. In additional to "family" fact patterns, the program will offer insights into fiduciaries acting on behalf of business owners. The faculty include experienced lawyers representing financial institutions and individuals -- plus one of those pesky law professor types.
Pennsylvania, as is true in other states, has a number of potential changes in law pending at the state legislature, influenced in part by the Uniform Power of Attorney Act changes, first recommended for adoption by the states in 2006. The program will provide the lates updates and trends.
For more, including remote access to the live webcast, go to the Pennsylvania Bar Institute's webpage, here.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 22, 2014
The always thoughtful ElderLawGuy, Jeff Marshall, has a great blog post on the complications that can arise from use of powers of attorney, especially with financial institutions. He uses Pennsylvania law to develop the topic, but there are certainly parallels in other states.
Thursday, January 16, 2014
We've blogged several times in recent months about state court rulings on enforcement of arbitration provisions in nursing home admission contracts, especially in the wake of the U.S. Supreme Court's ruling in Marmet Health Care Center Inc. v. Brown, 132 S. Ct. 1201 (2012). See here, here and here.
The latest interesting decisions arrived on the same day, January 13, 2014, from the Massachusetts Supreme Court. First, in Johnson v. Kindred Healthcare Inc., the court held that although a "health care agent" operating under a written advance directive had signed the nursing home's admission agreement containing a mandatory arbitration provision governing "all disputes," such action was not an authorized "health care decision," and thus was not binding on the patient under Massachusetts' health care proxy statute.
The court notes that its decision is consistent with the view of the "majority" of courts in other jurisdictions that have considered similar issues, and emphasized the intention of the Massachusetts legislature in framing that state's governing statute:
"We frame the matter differently [than did a contrary decision by the Supreme Court of Tennessee in a 2007 decision]. That a competent principal could have decided to enter into an arbitration agreement does not answer the core question we confront: whether our Legislature intended the term 'health care decision' to include the decision to waive a principal's right of access to the courts and to trial by jury by agreeing to binding arbitration. Our health care proxy statute reflects no such intent."
The Massachusetts Supreme Court was unpersuaded by the nursing home's argument that its decision promotes "uncertainty concerning the scope of a health care agent's authority." The court reversed the trial court order compelling "mediation or arbitration," and remanded for trial on the allegations that the nursing home's negligence caused the death of a resident of the facility.
Second, on the same day, the Massachusetts Supreme Court issued a similar ruling in Licata v. GGNSC Malden Dexter LLC, having earlier transferred that case from the intermediate appellate court on its own initiative. The son's signature as "responsible party" on the contract did not change the outcome:
"[E]ven assuming that Salvatore [the son] qualified as a responsible party for purposes of giving informed consent to medical treatment, this role did not empower him to sign an arbitration agreement on [his mother] Rita's behalf."
Further, the court rejected the nursing home's argument in the Licata case that theories of "ratification," "third-party beneficiary" or "equitable estoppel" compelled arbitration of the personal injury claim, concluding that "no inequity results from denying enforcement of the arbitration agreement."
These decisions show the importance both of statutory authority and careful drafting of documents appointing agents for those wishing "freedom" from mandatory arbitration (hence, the Liberty Bell, courtesy of photographer Bev Sykes). My first reading of these two decisions suggests that attorneys in Massachusetts and states with similar health care decision-making laws will still customize the language of POAs for "general agents" acting under powers of attorney, to make it clear that any grant of general authority does not include authority to bind the principal to mandatory arbitration of nursing home disputes, even if the agent also has authority to make health care decisions. Other thoughts from our readers?
Monday, January 13, 2014
A few years ago, one of the more perplexing cases handled by Penn State's Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s.
The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home. She was able to talk and communicate; arguably she did not seem impaired. She was told the product would save on taxes -- a pitch alluring to the frugal woman -- except for the fact that she really didn't need to save on taxes.
If one lives long enough or has looming care needs even at an earlier age, an individual's post-death estate planning goals can conflict with pre-death care needs. In the clinic client's case, the woman's annual income was modest, and her total estate was not large enough to trigger other major taxes. The assets used to fund the annuity were virtually her entire savings. Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity "early."
How often does this -- or worse -- happen?
In "Still No Free Lunch: Recent Regulatory Initiatives to Protect Seniors From Fraud in the Sale of Investment Products," 41 Securities Regulation Law Journal 397 (Winter 2013) (paywall protected; available on Westlaw as 41 No 4 SECRLJ Art 2), attorneys Ivan B. Knauer and Michele C. Zarychta address recent efforts to prevent or address fraudulent practices by an array of regulatory bodies. The 2013 piece updates their 2008 article (available at 36 No 4 SECRLJ Art 3). They outline several types of fraud and various financial products often marketed specifically to elders. For example, they observe:
"One of the most pressing concerns of the regulatory entities is the improper -- or at least confusing-- use of 'senior' designations by professionals, implying that a professional has expertise or training in senior-specific issues. FINRA [the Financial Industry Regulatory Authority] 'Rule of Conduct 2210 prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations or referencing legitimate degrees or designations in a misleading manner.' Misleading use of such designations may also violate federal securities laws or state laws."
The authors, who are experienced in representation of investment and financial service companies, recognize that business lawyers can help clients recognize the need to "take measures to ensure that their own policies and procedures protect seniors." "Still No Free Lunch" is a reminder that attorneys who are advisers to companies can and should be a larger part of the solution, rather than be viewed as part of the problem.
In reading the article, which emphasizes regulators' programs to "educate" the public, I am struck by the likelihood that a key tipping point occurs when a senior's susceptibility to a manipulative pitch is outweighed by his or her weakened ability to recognize risk, regardless of any fraud-prevention education. That was true, for example, with our clinic's client. Her life-time frugal nature was still intact; however, her judgment about whether she needed to "save" money on taxes was diminished. More education was not the solution for her, as she had probably lost the ability to appreciate its application. Indeed, a common marketing practice to seniors -- free lunches or dinners disguised as "educational seminars" -- trades upon that very fact, thus giving rise to the "no free lunch" theme in both articles by authors Knauer and Zarychta.
The authors detail stepped up enforcement efforts, including recent measures by the Consumer Financial Protection Bureau, established in 2010.
Hat tip to Penn State Dickinson Law Professor Lance Cole, who shared this interesting article.
January 13, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, January 10, 2014
I can remember when tax-savvy couples might plan their wedding dates according to the tax impact, and thus there was talk in political circles about the "Marriage Tax Penalty."
Recently, one of our Elder Law Prof Blog readers wrote to suggest we post articles about the impact of late-in-life marriage on Medicaid eligibility. Good idea! Many might assume that a well-drafted prenuptial agreement should preserve a split in retirement savings. That assumption could well be dangerous -- in the context of Medicaid. Here are links to a few recent articles, with brief excerpts to whet the appetite for reading more:
Late Life Love (Part II), by Monica Franklin, 49 Tennessee Bar Journal 30 (Feb. 2013):
"When discussing prenuptial agreements and marriage, we need to advise our clients that if one spouse needs Medicaid to pay for long-term care, the assets of both spouses will be considered by the Medicaid agency ([Tennessee] Department of Human Services, DHS). However, if the couple chooses cohabitation, DHS only considers the assets of the disabled partner. This information is crucial for couples considering late-life marriage."
Paying for Long-Term Care in Illinois, by William Siebers and Zach Hasselbaum, 100 Illinois Bar Journal 536 (October 2012), noting that with changes to Medicaid law, effective in Illinois in 2012:
"Eligibility for long-term care assistance will be denied [in Illinois] if the community spouse or institutionalized spouse refuses to disclose assets during the application process. Prior to this change, a community spouse with separately owned assets held for at least five years could decline to have those assets considered in the application process for the institutionalized spouse. This scenario commonly arose in second marriage situations. . . . "
Gray Divorce and Remarriage, by William DaSilva and Steven Eisman, 83 New York State Bar Journal 26 (July/August 2011):
"Another growing trend in the practice of elder law -- relating to both matrimonial law and health care planning -- is the use of so-called 'Medicaid divorces.' In fact, the use of Medicaid gifting and Medicaid planning received judicial sanction from New York's highest court in 2000 in [the case of] In re Shah, [95 NY 2d 148 (2000)]. In this type of divorce, the 'spouse in the community' ... stands to lose a lifetime's worth of savings unless a health care plan is devised that provides care for the ill or incapacitated spouse and simultaneously protects the assets of the spouse in the community so that both spouses do not end up impoverished wards of the state. A prenuptial agreement alone will not defeat a claim of Medicaid."
In my admittedly quick search for articles on the topic of prenuptial agreements and Medicaid, I did not find a comprehensive discussion by academics or law students in an academic law review. Rather, as suggested by the above citations, the articles I found were all state specific, from state bar journals. Perhaps one of our law school colleagues has a work-in-progress or article to share? Or, alternatively, perhaps some of our academic readers are looking for a good, comprehensive research topic for the future.
For our lay readers, this is a good opportunity to remind you this Blog is not intended to be a source of legal advice for specific issues. Of course, we do recommend that you consult with an experienced elder law attorney for state-specific advice!
Wednesday, January 8, 2014
Bloomberg News writers Alex Nussbaum, Alison Vekshin and Gigi Douban offer a timely article, available on the MSN website, titled "Obama Medicaid Split Creates Two Americas for the Poor." The article opens by contrasting the impact of states deciding whether to expand the availability of Medicaid, using the experiences of two women, one in California and one in Alabama, each facing health care crises:
"The women’s fates are the consequence of a political debate that’s divided the U.S. roughly along party lines: Democratic-led states have expanded Medicaid programs for the poor under the health law; most Republicans have refused. While the law’s online exchanges draw more scrutiny, it’s Medicaid that may determine the health of millions of Americans. The expansion is one of the twin pillars created by the law to supply medical care to the nation’s uninsured, complementing subsidies for private insurance."
The article also has useful links to health policy and economics studies, as well as commentary by political leaders, including Pennsylvania's former Governer Ed Rendell.
Tuesday, January 7, 2014
Elder law attorney and Medicaid law guru Julian Zweber sent along this brief summary of section 202 of the Bipartisan Budget Act of 2013. This provision of the budget bill addresses states' ability to recover Medicaid costs from PI settlements. Here's his take on the new law:
I've reviewed the recent amendments that appear to affect the Ahlborn case and conclude that the Ahlborn is still good law but more MA expenses may now be recovered under the assignment of claims against third parties. I conclude:
1. The changes are mandatory on the states. See the emphasized language in 1396k(a). The state plan "shall" rather than "may."
2. The amendments do not change the nature of the assignment of benefits. See the amendment to 1396k(a)(1)(A). The Ahlborn court focused on the nature of an assignment as opposed to a subrogation claim. A recipient of MA continues to assign his or her rights to MA for recovery from liable third parties for expenses paid by MA.
3. The state's right to recovery is expanded from just medical expenses paid by MA, to all expenses paid by MA under the State Plan. This would include non-medial expenses such as benefits provided under home- and community-based services.
4. The expansion of allowable expenses subject to assignment and recovery is the only change made by these amendments.
5. An apportionment of any settlement that provides less than full recovery of all damages would still be required to determine which part of the settlement is attributable to claims subject to MA assignment. To the extent that the MA part of the settlement pie becomes bigger, the injured party will receive less from the settlement, but the MA claim does not have to be paid in full before the plaintiff recovers. Ahlborn is not overturned.
Thank you, Julian!
Monday, January 6, 2014
Catching up after a busy weekend at the Association of American Law Schools (AALS) Annual Meeting 2014 in New York City, I'm happy to report the presentations at the Section on Aging and the Law seemed to go smoothly and were well received, with a very engaged audience. While the weather made travel to and from NYC a bit tricky, it also seemed to "encourage" strong attendance at sessions. (I found myself skating even when not visiting the rink at Rockefeller Plaza!)
Section Chair Susan Cancelosi (Wayne State) was snowed out -- but I suspect Susan would be pleased by the reaction to the program she planned. Thank you, Susan, for putting together the theme, securing speakers, making sure we were all on track, and creating a back-up weather plan. We've decided you should be the moderator next year, if you don't mind!
Dick Kaplan (Illinois) led off the panelists, using his best "Dr. Phil" style to walk us through (both literally and metaphorically) the latest changes to Medicare triggered by the Affordable Care Act and other recent legislation. Recognizing that many in our audience do not teach elder law or health care law, Dick offered information useful to all academics who "expect" to retire. For example, recent information from the Employee Benefit Research Institute supported his forecast that a 65-year old person retiring in 2012 would need substantial saving just to cover out-of-pocket medical expenses, in the range of $122,000 -$172,000 for men and between $139,000 - $195,000 for women (with projections also affected by prescription drug usage). Dick reminded us that this figure does NOT include any costs for long-term care.
Next on the panel was Laura Hermer (Hamline), who is new to our Section -- and a very welcome addition. Using her health law background, Laura outlined the maze of programs, including state plan innovations and waiver programs under Medicaid, that may provide "long-term services and supports" (or LTSS -- the latest acronym that seems to be an intentional step away from a "care" model) for older persons. Her presentation emphasized the shift to home or community based care, but Laura made clear that this shift depends heavily on unpaid care by family members.
Incoming Section Chair Mark Bauer (Stetson) made effective use of visual images of 55+ communities in Florida to demonstrate his concern that exemptions from civil rights protections that permit age-restricted communities may not be matched by actual benefits for the older adults targeted as residents. Mark stressed the percentage of housing that is not designed to match predictable needs for an aging population. Examples included multi-story designs without elevators, steps into even ground-level units, and bathrooms without wheel-chair accessibility. Mark's presentation expanded on his recent article in the University of Illinois' Elder Law Journal.
Speaking last, my topic was the latest state law developments tied to federal laws that authorize nursing homes to compel a "responsible party" to sign a prospective resident's nursing home contract. States are creating potential personal liability for costs of care for family members, agents or guardians, or transferors or transferees of resources, if the resident is deemed ineligible for Medicaid. Here are links to a copy of the slides I used for my presentation on "Revisiting Nursing Home Contracts," as well as to a related short article I was invited to write for the Illinois State Bar Association's Trusts & Estates Section in December 2013.
The panel presentations were followed by great questions and observations from the audience, further highlighting the financial challenges of aging. Plus, it was wonderful to see several new members volunteering to join the planning committee for future programs for the Aging and Law Section of AALS. And welcome back to the board to Alison Barnes (Marquette Law).
January 6, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Retirement, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, December 31, 2013
Mark Bauer at Stetson University Law will make a presentation on the role of 55+ housing at the upcoming AALS Annual Meeting in New York City. In describing his topic, Professor Bauer comments: "Such housing communities are exempt from civilian rights laws and almost any substantive rules. Yet it is questionable whether strong benefits really accrue to elders."
His presentation will likely draw upon his recent scholarship, including "'Peter Pan' as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to be Exempt from Civil Rights Laws and Substantive Federal Regulation," recently published in University of Illinois' Elder Law Journal.
Professor Bauer has broad scholarship interest, including antitrust, administrative law, property and financial advocacy. He has also served as the supervisor of Stetson's Elder Consumer Protection Law internship program. His presentation will be part of the Aging and Law Section meeting for the American Association of Law Schools' Annual Meeting to be held in New York City from January 3-5. Professor Baur is the incoming chair-elect for the Section, with duties to include planning the program for 2015.
Saturday, December 14, 2013
New York Times writer Alina Tugend reports on community and state responses to concerns over older drivers in "An Alternative to Giving Up the Car Keys." An excerpt:
"While that is a scary thought for some people, the common perception, that the only real choice is between ignoring the difficulties faced by elderly drivers and taking away the car keys, is wrong. 'We’re evolving in our thinking,' said Jodi Olshevski, a gerontologist and executive director of the Hartford insurance company’s Center for Mature Market Excellence. 'We’re not just looking at the transition from driver to passenger, but how we can empower drivers to extend their driving as long as possible.'”
Friday, December 13, 2013
Pennsylvania's House of Representatives has been holding a series of hearings on elder abuse, in anticipation of potential amendments to the state's Older Adult Protective Services Act. The hearings offer presentations and panel discussions with experts speaking from different perspectives, including administration, law enforcement, providers, and advocates from various organizations.
I was invited to speak at the last panel on the topic of "financial exploitation," as a member of the Pennsylvania Bar Association's Elder Law Section, and because of my experience as the former head of Penn State Dickinson's Elder Protection Clinic. [UPDATE: Here's a link to my written testimony, submitted in advance of hearing.] Other speakers included representatives of the Pennsylvania Bankers Association; community banks; credit unions; and from Area Agencies on Aging that are charged with investigation of reports of suspected abuse. A particularly strong speaker was Linda Mill, a certified financial examiner and former banker, who is now the investigations manager for Temple University's Institute on Protective Services.
During the bankers' presentations, speakers emphasized their institutions' training for all levels of personnel to spot red flags of abuse. This was part of their argument against any need for the state to adopt "mandatory reporting" of suspected abuse by banks and other financial institutions. In contrast, Mills testified that during the last ten years, despite her history of working on the bankers' side, she had come to the personal conclusion that mandatory reporting is necessary in order to provide more timely, effective investigation by public authorities. Mills pointed to Maryland's 2012 adoption of mandatory reporting as precedent.
The interaction between panelists and legislators was robust. For example, Committee Co-Chair Steve Samuelson (in the photo on the right, seated next to Chairman Tim Hennessey) asked whether agents under powers of attorney should be required to file annual reports to facilitate greater accountability. Representative Stephen McCarter asked about the practicality of "bonding" for agents using POAs. Representative Harold English had a detailed list, including the possibility of "payback" to fund investigative services and mandatory "recording" of current documents in order to make it clearer about which POAs are "in effect." He also expressed concern about annuity sales to elders.
Draft legislation updating Pennsylvania's Older Adult Protective Services Act is expected to circulate for comment later this month.
Special thanks to Eric Kovac from the Pennsylvania Bankers Association for sharing copies of his "insider" photos from the hearing.