Friday, October 21, 2016

LeadingAge's Annual Meeting Begins October 30 in Indianapolis

LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October.  This year's theme is "Be the Difference," a call for changing the conversation about aging.  I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns.  For example, this year's line up of workshops and topics includes:

October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Thursday, October 20, 2016

Should Judges Have Mandatory Retirement Ages? What's the "Right" Number?

Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions.  In a perfect world, merit-based criteria should be the issue, not age.  At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire.  The whole family was involved, but it needed to happen.

During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges.  The spring initiative read:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary.  I voted yes, knowing that many of the most capable judges were still in their prime at 70+  

However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative.  Instead, in  the upcoming general election the following initiative will appear:

Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?  

Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like  the hide-the-ball tactics.  He joined others and challenged the language.   His word for the tactic?  "Deceitful."

Who had the final say on which language would be used?  Ironically, the Pennsylvania Supreme Court.  In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.  

October 20, 2016 in Cognitive Impairment, Current Affairs, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 19, 2016

Will Colorado Be the Next State to Approve Aid-In-Dying?

The most recent issue of Governing magazine contains an article on the upcoming vote in Colorado on aid-in-dying. Colorado Could Strengthen Aid-in-Dying Movement explains "[t]he movement has been slow to gain momentum -- Oregon was the first state to legalize aid in dying in 1994. But Colorado could reignite the cause in November. Voters there will be weighing Proposition 106, a ballot measure modeled after Oregon's. It would give mentally competent adults with a medical prognosis of six months to live the right to request a prescription to end their lives. Two doctors must agree."

The article notes that looking at past state referendums, one would think the odds are long for Colorado approving the measure. But "Colorado ... may beat the odds. According to a September poll, 70 percent of Colorado voters support the measure, 22 percent oppose it and 8 percent are undecided."

As to be expected with this type of legislation, there are supporters and opponents. Two of the state's newspapers urged voters to not support the bill.  The governor of Colorado supports the bill, saying: '"It’s not about suicide.... These people are going to die anyway. They’re terminally ill… I think they should have that right to have medical advice, medical supervision, be able to make sure they have the final say themselves."'

Stay tuned...

October 19, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Professor Kaplan on Religion and Advance Medical Directives

University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.

From the abstract: 

This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.

This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics.  Thank you, Dick.

October 19, 2016 in Advance Directives/End-of-Life, Ethical Issues, Health Care/Long Term Care, Religion, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 17, 2016

Will Increases to Minimum Wage Impact Seniors?

Arizona has two interesting initiatives on the 2016 ballot for the November 8th election.  One is Proposition 205, which would legalize recreational marijuana if passed; the other is Proposition 206 which would increase the state's minimum wage from $8.05 per hour to $10 per hour in 2017 (and incrementally thereafter to $12 by 2020), plus require employers to provide paid sick leave (40 hours annually for large employers and 24 hours annually for small employers). Guess which Prop is getting the lion's share of attention on media airwaves? Nonetheless, both measures are high profile and certainly the wage initiative should be carefully considered.  

Mark Young, who is president of the Arizona In-Home Care Association, and operates a home care company in Arizona, offers an interesting perspective on the potential impact of higher minimum wages in a column published recently on the Opinion page for the Prescott Daily Courier. He opens: 

He cites Seattle's increase of minimum wage to $15/hour as evidence of an corresponding increase for the average cost of in-home care to nearly $35 per hour, making such services "out of reach for many seniors."  He continues: 

Even more concerning is the potential unintended consequences of Prop 206: The emergence of an underground market which would place liability and risk on our most vulnerable community members. This could result in increased financial, physical, or even mental abuse by predators targeting seniors and disabled adults and children – a segment of our society already at risk.


As our senior population grows the demand for skilled caregivers has been increasing dramatically. If the cost to employ skilled caregivers goes up while the pool of available workers shrinks, many in-home care agencies will be forced to meet demand by hiring workers who are less expensive but also less experienced which could negatively impact overall quality of care.

The affordability argument for home care I understand, but I'm pretty darn skeptical of an argument that keeping the official minimum wage under $10 per hour protects against predatory behavior by home care workers. Nonetheless, it will be interesting to see how Arizonans vote on these two propositions, especially given the state's often libertarian take on conservative politics. At least one poll shows Arizonans favor the incremental increases under Prop 206 to $12 per hour.

October 17, 2016 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (3)

Monday, October 10, 2016

Update on 2015 Iowa Case, Raising Issue of "Consent" to Sexual Relations in Nursing Homes

In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease.  See here, here and here, for example.  The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a).   After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys --  the jury acquitted Henry Rayhons, then age 79.  The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.

The legal proceedings did not stop with the criminal case.  A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's  treating physician at the nursing home.  Separate counts named the nursing home itself on state law claims of vicarious liability.  Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case.  In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.  

Continue reading

October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?

My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities.  As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up.  This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.

The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq.   The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result. 

CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs."  CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s.  CMS further explains (at page 399 of the 700 page commentary to the new rules):

Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . . 


We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.


Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”

By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).  

The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016: 

Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.


“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.


LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.


“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.

Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development. 


October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, September 30, 2016

Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim

I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania.  A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.

In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support"  law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied.  N.J. filial support obligations are more limited than those affecting families under Pennsylvania law.  Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents.  See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question.  The disabled son was 29.

The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language.  At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.

Continue reading

September 30, 2016 in Ethical Issues, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 28, 2016

Attorney's Representation of 82-Year Old Woman on Slip & Fall Case Leads to Disciplinary Sanctions

I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?"  It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client.  The "family" is generally not the answer to "who is your client?," even if you represent more than one family member.  From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:

By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.

Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%. 

The case was settled, and Silva’s staff deposited the check into her operating account.  A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.

While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.

The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory.  Different accounts for different clients.  While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction.  The $64,000 question just got a whole lot more expensive for that lawyer. 

My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.



September 28, 2016 in Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 26, 2016

Home Care Workers at the Very Heart of Debates about Overtime Pay and Minimum Wage

Home care workers have many different titles and roles, but a common problem for all is the rate of pay.  Many work long "block" shifts of 10 or more hours at a time.  Many are employed by agencies that charge clients $20+ per hour while paying the workers less than half that rate. Home care agencies typically offer no or minimal benefits.   At the same time, for families facing the prospect of care for elderly parents or grandparents, increasing the hourly rate and/or mandating overtime rates can quickly become unaffordable. Home care is often not covered by insurance, especially if the care is not deemed to be "medically necessary." 

The New York Times recently offered a portrait of the problems, beginning with evidence the average hourly rate for home care workers has actually gone down -- from a national median of $10.21 (adjusted for inflation) in 2005 to $10.11 in 2016: 

This helps explain why Patricia Walker, 55, a certified nursing assistant who works for a Tampa home care agency and provides care for two older men — and hasn’t received a raise in five years — must rely on $194 in food stamps each month.


“It helps me a lot, because I don’t have to wait for my paycheck to buy food,” she told me.


Still, working only 16 hours a week while hoping for more, at $10 an hour, means she can’t afford a place to live. “I would love to be able to put a key in my own door and know this is mine,” she said.

Instead, she pays friends $50 every other week to rent a room in their apartment.

Home care aides, mostly women and mostly of color, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million.

For more, read As Their Numbers Grow, Home Care Aides Are Stuck at $10.11.

September 26, 2016 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, September 20, 2016

Thinking about Consumer Protection, Families, and Older Clients in Banking

I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers.  Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.  

One of the practical lessons, however, is that each banking institution does it differently when responding to concerns.  For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question.  The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.

Along this line, I recently received news of a timely CLE program.  The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania.  The Pennsylvania Bankers Association is co-hosting the program.  

Speakers include:


Hon. Robin L. Wiessmann
Secretary, PA Department of Banking and Securities


Leonidas Pandeladis, Esq.
Chief Counsel, PA Department of Banking and Securities


Jeffrey P. Ehrlich, Esq.

Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC

The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess.

Related articles

September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 19, 2016

Upcoming Conference to Focus on Dispute Resolution in the Face of "Medical Futility"

On Friday, November 18, 2016, Mitchell Hamline School of Law and Children's Minnesota are hosting a one day seminar on "Ethics, Law and Futility" in Minneapolis.  The target audience is described as "Nurses, Physicians, Social Workers, Lawyers, Patient Advocates, Parents/Guardians or anyone interested in ethics, law and futility."  The premise is intriguing, as explained in conference promotion materials:

There is a knowledge gap between what is presumed as one’s ethical and legal obligations to patients during cases of futility and what actually their responsibility is. This conference will assist in clarifying these issues and provide the audience with tools for managing futility cases.

Speakers include: 

  • Thaddeus Pope, Director of the Health Law Institute at Mitchell Hamline School of Law, speaking on "When may you stop life-sustaining treatment without consent?  Leading Dispute Resolution Mechanisms for Medical Futility Conflicts.”

  • Emily Pryor Winston, Associate General Counsel at Children’s Hospitals and Clinics of Minnesota, on "Minnesota Law and Medical Futility Analysis."

  • Jack Schwartz, Adjunct Professor at the University of Maryland School of Law and Former Maryland Assistant Attorney General, on "The Ethics of Legal Risk.

For more, see the home page for the symposium, which provides registration materials.

September 19, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 11, 2016

"Come Hell or High Water" at the Movies

Over the weekend, I caught the recently released movie, Hell or High Water. Both "contract law" and "elder law" figure into the plot.  Warning: Spoilers ahead -- so don't keep reading if you don't want to know.

The timeless and yet still "modern" plot -- with sons trying to save the family homestead from the bank -- has a few good West Texas twists (although the movie was mostly filmed in my old stomping grounds of New Mexico).  I enjoyed the play on words with the title of the movie from a legal perspective.  The bank's "reverse mortgage" on the homestead has a payoff clause that bars any excuses for nonpayment, such as Acts of God or other hardships.  In legal circles such clauses have are called "come hell or high water" terms, rejecting any "force majeur" excuses for late payments.  So the brothers are up against the clock. Can they steal enough from the very bank conglomerate that made the loan in order for them to get the mortgage paid off by the deadline?  Good character actors abound, including two waitresses who steal the scenes in small town diners and Jeff Bridges at the other end of a Texas journey he began 45 years ago with The Last Picture Show.

The reverse mortgage is the elder law part of the plot.  The movie hints the aging mother was loaned just $25,000 on the homestead (where oil may be found) -- enough to be difficult to pay off (especially with taxes and fees), but not enough money to truly save her from her debts.   While the plot stretches the realities of reverse mortgages, in truth such mortgages are typically very high cost loans, and are not easily refinanced. 

September 11, 2016 in Consumer Information, Current Affairs, Ethical Issues, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, September 9, 2016

The Surprisingly Complex Law of Descansos (a/k/a Roadside Memorials)

When I was growing up in Arizona, my father and I spent a lot of time on the road, and we would often comment on the small white crosses found along the highways marking the locations of fatal car accidents.  Perhaps this conversation was a bit morbid in retrospect, but the presence of the crosses made an impression on me, demonstrating just how significant a momentary lapse of awareness can be for drivers operating at high speeds.  I'm not sure when those state-sponsored memorials ended, but you still sometimes see markers installed by families. They can vary from simple to elaborate. In the Southwest generally, they are sometimes known as "descansos," a Spanish word for "resting places," and there is a long tradition behind them.  

More recently in Arizona, the tradition has been challenged, with state authorities aggressively removing the impromptu memorials as "safety hazards" in early 2016, citing long-standing laws prohibiting such markers.  An Arizona newspaper chronicled the issues earlier in the year: 

For the past 15 years, Pete Rios would say a special silent prayer as he drove past a large white cross that sat on top of a rocky hill just alongside the road on his way to work.


As a little boy, he said, he was told “that’s what you do to show respect” for the many memorial sites that line Arizona highways, marking the deaths of loved ones.


One in particular was special to the Pinal County supervisor.


It bore the initials of his sister, Carmen Rios, who had been killed near that spot by a drunken driver in 2000. It sat surrounded by a 3-foot angel, faded in color from years of sun beating down on it, and ceramic vases that held new flowers with every passing holiday and changing of seasons.


Last week, the memorial disappeared.

When dozens of crosses along Arizona highways disappeared suddenly, families protested.  They countered the "safety" argument, pointing to the absence of any evidence that the small crosses caused drivers to stop or otherwise change their course of driving.  The Arizona Department of Transportation offered "alternatives" as memorials, suggesting families could participate in Arizona's "adopt a highway" program.   

The grassroots advocacy of families took hold, and recently the Arizona Department of Transportation announced a new policy:

Recognizing the need of families to grieve in different ways for those killed in crashes, the Arizona Department of Transportation has established a policy allowing memorial markers along state-maintained highways in a way that minimizes risks for motorists, families and ADOT personnel.


Developed with input from community members, the policy specifies a maximum size and establishes standards for materials and placement so markers present less chance of distracting passing drivers or damaging vehicles leaving the roadway....


  • Size and materials: A marker may be up to 30 inches high and 18 inches wide, and the wood or plastic/composite material components used to create it may be up to 2 inches thick and 4 inches wide. It may include a plaque up to 4 inches by 4 inches and up to 1/16 of an inch thick. It may be anchored up to 12 inches in the ground, but not in concrete or metal footings.
  • Placement: In consultation with ADOT officials, families will place markers as close as possible to the outer edge of the highway right of way. Markers may only be placed in front of developed property if the property owner gives written permission to the family.

It turns out that states across the nation have different laws and policies governing roadside memorials.  And, I guess I'm not entirely surprised to discover law review articles on this very subject. Florida Coastal Associate Law Professor Amanda Reid has two very interesting pieces, including "Place, Meaning and the Visual Argument of the Roadside Cross," published in 2015 in the Savannah Law Review.

September 9, 2016 in Current Affairs, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations, Travel | Permalink | Comments (0)

Friday, August 26, 2016

The CNA Conundrum: Background Checks, Continuing Education & Licensure

The long-term care industry depends hugely on the services of "nursing assistants," also known as NAs, who provide basic but important care for residents or patients under the direction of nursing staff (who, in turn, are usually Licensed Practical Nurses or Registered Nurses). As the U.S.Department of Labor describes, NAs typically perform duties such as changing linens, feeding, bathing, dressing, and grooming of individuals. They may also transfer or transport residents and patients. Employers may use other job titles for NAs, such as nursing care attendants, nursing aides, and nursing attendants. However, the Department of Labor makes a distinction between NAs and other key players in long-term care, including "home health aides," "orderlies," "personal care aides" and "psychiatric aides." 

According to DOL statistics, the top employers of NAs include skilled nursing facilities (37% of NAs), continuing care retirement communities and assisted living facilities (together employing some 18% of NAs), and hospitals and home care agencies, which each employ about 6% of the NA workforce.  

For many years, states have offered licensing for nursing assistants.  The designation of CNA or "certified nursing assistant" meant that the nursing assistant had satisfied a minimum educational standard and had successfully passed a state exam.  As another key protection for vulnerable consumers, CNAs had to pass background checks, involving fingerprints and criminal history searches.

In Arizona, however, now I'm hearing a new label:  LNAs or Licensed Nursing Assistants.  The Arizona Board of Nursing continues to license CNAs, but now it is offers the designation of Licensed Nursing Assistants. What's the difference?  Frankly, not much, at least in terms of skill levels. Then why the change?

In Arizona, CNAs and LNAs have the same educational requirements, and must pass the same test and satisfy the same work credits. But, as of July 1, 2016, individuals seeking the LNA designation will be required to pay the state a fee to cover their mandatory background checks, including fingerprinting.  CNAs, however, will no longer be required to undergo background checks or fingerprinting.  

What is this about? Arizona is trying to save money.  It seems that state and federal laws prohibit state authorities from mandating that CNA candidates cover the cost for their own background checks.  In other words, if the candidate showed financial need in the application process, the state was required to pick up the costs for any background checks. Let's remember that the average wages of CNAs are relatively low -- the national mean is less than $30,000 per year. Presumably that is the reason behind the older laws limiting how much states can charge CNA applicants for their own background checks. By creating a new designation, LNA, Arizona takes the position it avoids the federal restriction.

But, what about the public?  Will the public understand that CNAs licensed after July 1, 2016 will not be subject to fingerprinting and background checks?   Responsible employers would, presumably, require such checks or limit their hires to LNAs.   At least, let's hope so.

I also learned that apparently Arizona does not require "continuing" education for either CNAs or LNAs.  (Again, you would hope that responsible employers would either provide or require such education.)  Arizona used to require a minimum of 120 hours every 2 years of what are, in essence, "job credits" -- i.e., proof of employment in an NA position -- to maintain the CNA license.  Recently, however, Arizona diluted that requirement to just 8 hours every two years for both CNAs and LNAs.  

Arizona does have a useful website where current or prospective employers, including families, can check the licensing status of CNAs or LNAs. The website is searchable by name or license number, and shows whether an applicant has failed the entrance exam, or has withdrawn an application or lost the license.  

Are other states creating this LNA designation as a "workaround" (loophole?) for financing background checks for CNAs?  Let us know!  

August 26, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 23, 2016

Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31

Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.

These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation.  It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.  

Thanks, Jeff!  

August 23, 2016 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 16, 2016

Grandmother Was Living On Her Own and Doing Just Fine Until...

Last weekend, the Arizona Republic newspaper carried a Question and Answer column that caught my eye.  The question began: 

My grandmother lives in Scottsdale, and my wife and I live in Chicago.  We only visit her two or three times a year.  Although we thought my grandmother was still able to manage her financial affairs, she recently called us to say that she was being evicted from her Scottsdale home for nonpayment of HOA dues.  My grandmother owns her $450,000 hoe free and clear....


HOA dues only totaled $700 originally.  After the late charges, interest, and legal fees, however, there was almost $8,000 owed at the foreclosure sale two weeks ago.

How often do crises involving aging loved ones begin with the words "I thought she was doing well living alone until...?"  Here the concerned grandson jumped into action and the consumer advisor suggested a range of options, including working with the "investor" to resolve the ownership and equity issues.  For more you can read Grandmother Loses Home to HOA Fees on the PressReader service for the Arizona Republic, August 14, 2016.


August 16, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Estates and Trusts, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, July 28, 2016

ABA Family Law Quarterly Focuses on "Gray Divorces and Silver Separations"

This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes.  The articles in the Spring 2016 issue include:

  • The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
  • Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
  • The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
  • Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
  • Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
  • Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and 
  • Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah

In my review of the articles, I would have liked to see more discussion of the potential expectations  of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care.  In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement.  This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning.  Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."

July 28, 2016 in Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Statutes/Regulations, Veterans | Permalink | Comments (1)

Wednesday, July 20, 2016

More on Physician-Aided Dying

I wanted to make sure you didn't miss these developments.

First, Colorado voters in November may see a ballot initiative on physician-aided dying.  Proponents are collecting signatures according to an article in the Denver Post, Right-to-die initiative headed for Colorado’s November ballot. It's not a slam-dunk however. The article notes that there is opposition to the proponents efforts to place the initiative on the ballot.  Proposed legislation failed previously. Stay tuned.

Second, in case you missed it, on June 30, 2016, the New Mexico Supreme Court issued its ruling in Morris v. Brandenburg,  a physician-aided dying case that has been making its way through the appeals process.  The court held "we decline to hold that there is an absolute and fundamental constitutional right to a physician’s aid in dying and conclude that Section 30-2-4 is not  unconstitutional on its face or as applied to Petitioners in this case." The court relied heavily on the U.S. Supreme Court opinion in Washington v. Glucksberg and found no specific reasons under the NM Constitution to depart from that precedent since physician-aided dying is not a fundamental right.  Here's an excerpt from the opinion:

New Mexico, like the rest of the nation, has historically sought to deter suicides and to punish those who assist with suicide, with limited exceptions in the HCDA and the Pain Relief Act. However, these exceptions occurred as a result of debates in the legislative and executive branches of government, and only because of carefully drafted definitions and safeguards, which incidentally are consistent with the safeguards urged by Petitioners. Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to those previously identified in paragraph 35 of this opinion, the following reflect other safeguards relevant to our analysis... These and other provisions of the UHCDA further many of the government interests recognized by the Glucksberg Court as unquestionably legitimate, and which made Washington’s ban on physician aid in dying reasonably related to their promotion and protection…Indeed, if such exceptions and carve-outs to the historical national public policy of deterring suicide properly exist, they are certainly borne of the legislature and not the judiciary.

A summary of the opinion appeared in the July 13, 2016 eBulletin (full disclosure-I'm one of the editors).

July 20, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!


July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)