Wednesday, February 25, 2015
There are many interesting sessions, but two sessions will be of particular interest to those of us teaching elder law. On Saturday May 30 from 4:45-6:30 p.m. PDT is a panel session on Supporting Older Adults' Well-Being: A Look Across Countries which will include 5 presenters focusing on three countries, Sweden, China and the U.S. The second session is on Sunday May 31 from 8:15-10:00 a.m. PDT is a panel discussion on Uniform Laws & Older Adults. The general schedule for the conference is available here.
Tuesday, February 24, 2015
USA Today reports on home care workers "joining a nationwide movement" to raise wages, with rallies planned for "more than 20 cities in the next two weeks."
As described by journalist Paul Davidson,
"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging Baby Boomers over the next decade.
'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."
According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."
Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.
February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Friday, February 13, 2015
WTAE-TV in Pittsburgh, offers an inside look into the alleged role of nursing home lobbyists associated with the Pennsylvania Health Care Association (PHCA) in crafting a notice posted by the Pennsylvania Department of Health, stating that its inspection survey reports "are not intended to be evidence of compliance with any legal standard of care in third-party litigation." (According to WTAE-TV, an original "disclaimer" label on the notice was recently changed by the Department of Health to "explainer.")
Here's a link to coverage, including an article and video, at WTAE-TV: "Emails reveal nursing home lobbyists pressuring state on lawsuits -- Inspection reports not allowed in lawsuits?"
UPDATE: Here is a link to the Pennsylvania Department of Health's nursing care facility locator website, where a detailed "Explanation" of the survey inspection process appears. The notice includes the language quoted by the news report above, and appears the first time you access that website. However, once you press "okay" on the notice, it disappears.
Additional Update: Here is another link to "just" the explanation. As several readers commented, the location of this explanation on the Department of Health website is potentially confusing, as it appears to apply to any Medicaid or Medicare provider that is subject to inspections, but the title on the page as of today's date says "except nursing homes."
Thursday, January 29, 2015
On Monday, we linked to the front-page New York Times article by Nina Bernstein, "To Collect Debts, Nursing Homes Are Seizing Control Over Patients." Suffice it to say, I've been hearing a lot about the topic, from many sources. In hearing from law professors and lawyers with different perspectives, it appears there are at least three important questions framed by the article. Each may take additional investigation to fully address, whether in New York or other states where similar concerns have been raised.
In one of the cases described by the NYT, a court opinion addresses what appears to be the nursing home's narrow "collection" purpose in seeking a guardianship. The article summarizes:
"Last year Justice [Alexander W.] Hunter did appoint a guardian in response to a petition by Hebrew Home for the Aged at Riverdale, but in his scathing 11-page decision, he directed the guardian to investigate and to consider referring the case for criminal prosecution of financial exploitation.
The decision describes a 94-year-old resident with a bank balance of $240,000 who had been unable to go home after rehabilitative treatment because of a fire in her co-op apartment; her only regular visitors were real estate agents who wanted her to sell. After Hebrew Home’s own doctor evaluated her as incapable of making financial decisions, the decision says, the nursing home collected a $50,000 check from her; it sued her when she refused to continue writing checks, then filed for guardianship. 'It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties — parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid,' he wrote.
Jennifer Cona, a lawyer for the nursing home, called the decision 'grossly unfair to Hebrew Home,' but said she could not discuss details because the record was sealed."
Two additional cases raise similar issues and are referenced in the New York Times. Both have opinions by Judge Hunter:
Matter of G. S., 17 Misc.3d 303; 841 N.Y.S. 2d 428 (Sup. Ct., New York County 2007), and
Matter of S.K., 13 Misc.3d 1045; 827 N.Y.S.2d 554 (Sup. Ct. Bronx Cty., 2006).
In both cases, Judge Hunter concluded the purpose for which the guardianship petitions were filed by the nursing home as petitioner was "not the legislature’s intended purpose when Article 81 of the Mental Health Law was enacted in 1993.” In each case, the judge assessed fees against the petitioner nursing home. In the 2007 case of G.S., the court observed, "To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate."
Jenica Cassidy, a recent graduate of Wake Forest University School of Law, has been serving as a Fellow with the ABA Commission on Law and Aging since August 2014. It appears she's been making very good use of her time, working on a study that examines termination of guardianships and restoration of rights for adults.
BiFocal, the journal of the ABA Commission is publishing a short overview of the study -- a sneak peek -- in its February issue. What I especially appreciate is the clear documentation provided by the author on the methodology, including "(1) statutory review; (2) case law search and analysis; (3) online questionnaires for attorneys and judges; and (4) stakeholder interviews." Jenica and the Commission staff analyzed 104 cases, including 57 cases occurring between 1984 and 2014, where individuals petitioned for restoration of rights. The study highlights the challenges that face any individual seeking to terminate a guardianship, as well as the impact of guardian testimony or opposition to such petitions.
The full report will be published in the Elder Law Journal (University of Illinois), but in the meantime, read the intriguing summary available through BiFocal.
Friday, January 23, 2015
As outlined in the Bar Counsel column of the January issue of the Oregon State Bar Bulletin, on January 1, 2015, lawyers became mandated reporters of suspected elder abuse, including physical abuse, neglect, verbal abuse, sexual abuse, and financial exploitation. Deputy General Counsel Amber Hollister for the Oregon State Bar explains:
"Lawyers across Oregon are talking about elder abuse reporting. On Jan. 1, 2015, legislation took effect making all Oregon lawyers mandatory reporters of elder abuse. HB 2205 (2013). As with any new law, there are still many questions about how the new requirements will apply and impact lawyers' day-to-day practice....
The new reporting requirement was enacted at the recommendation of the Oregon Elder Abuse Prevention Work Group, which was tasked with studying how to better protect older Oregonians. As state Rep. Val Hoyle notes, 'for four years, the work group has focused on protecting some of Oregon's most vulnerable citizens. Integrating lawyers into Oregon's elder abuse safety net as mandatory reporters will provide our state with 19,000 additional advocates.'"
Thursday, January 22, 2015
We have written many posts about underfunded benefit programs at the federal and state levels (see e.g., here), but another looming problem is underfunding of pension programs at the local levels. The potentially affected employees include firefighters and sanitation workers and police officers.
This week WITF-Radio's Smart Talk program explored the issue in Pennsylvania:
"More than 500 Pennsylvania municipalities' pension funds are considered "distressed" because they're funded at less than 90%. Some Pennsylvania cities, boroughs, and townships currently have pension funds at lower than 50%. State law impacts public employees' ability to negotiate their contracts, making this issue of particular concern to lawmakers in Harrisburg.
Last week, Pennsylvania Auditor General Eugene DePasquale announced that in total Pennsylvania's municipal pension funds have a $7.7 billion liability. Legislation is expected to be proposed this year that will seek to eliminate some of the liability over the long term."
It seems unlikely that Pennsylvania is the only state with a local-level pension funding problem.
The primary speaker on the program, Pennsylvania Municipal League Executive Director Richard Schuettler, pointed to an interesting aspect of the problem, what he sees as unrealistic decisions by arbitrators in collective bargaining labor disputes over pay and retirement benefits.
Wednesday, January 21, 2015
A new acronym, VSED, is emerging in discussions of end-of-life decision making. It refers to Voluntarily Stopping Eating and Drinking. However, what happens when such a plan is combined with increasing dementia?
As addressed in Paula Span's thoughtful piece for The New York Times' "The New Old Age," it may not be possible to ensure such a plan will be honored, at least not under the existing law of most states. Consider the following example:
"Like many such documents, [Mr. Medalie's Advance Directive] declares that if he is terminally ill, he declines cardiopulmonary resuscitation, a ventilator and a feeding tube. But Mr. Medalie’s directive also specifies something more unusual: If he develops Alzheimer’s disease or another form of dementia, he refuses 'ordinary means of nutrition and hydration.' A retired lawyer with a proclivity for precision, he has listed 10 triggering conditions, including 'I cannot recognize my loved ones' and 'I cannot articulate coherent thoughts and sentences.'
If any three such disabilities persist for several weeks, he wants his health care proxy — his wife, Beth Lowd — to ensure that nobody tries to keep him alive by spoon-feeding or offering him liquids. VSED, short for 'voluntarily stopping eating and drinking,' is not unheard-of as an end-of-life strategy, typically used by older adults who hope to hasten their decline from terminal conditions. But now ethicists, lawyers and older adults themselves have begun a quiet debate about whether people who develop dementia can use VSED to end their lives by including such instructions in an advance directive...."
For more, continue reading "Complexities of Choosing End Game for Dementia." Thanks to Elder Law Attorney Morris Klein for sharing this good article.
Tuesday, January 20, 2015
Those were the words of Ron Costen in speaking to friends, co-workers, legislators and policy-makers who have long been inspired by his passion to protect the elderly and who had gathered to honor Ron.
Temple Professor Ronald Costen, with multiple degrees in law and social work, has been working on behalf of vulnerable adults, including older persons, for more than thirty years. He is preparing for a "realignment" -- not a retirement -- as he leaves his full time job as founder and Director of Temple University's Institute on Protective Services in Harrisburg, Pennsylvania, where he advised Area Agencies on Aging, county task forces, coroners, prosecutors, social work students and the Department of Aging on best practices when seeking protection for adults faced with neglect or abuse.
The audience, including Pennsylvania Department of Aging Secretary Brian Duke (shown above, right, with Dr. Costen, left), celebrated Dr. Costen's career last week with warm and funny memories, helping him embark on a new combination of consulting work and studies at the Lutheran Theological Seminary of Gettysburg. The new director of the Institute is one of Ron's former social work students, Christopher Dubble, MSW.
Best wishes, Ron!
Thinking More Deeply About Treating Nonlawyers Who Offer Medicaid and Estate Planning as Engaging in UPL
Earlier this week, we reported on the Florida Supreme Court's recent Advisory Opinion regarding activities by nonlawyers in "Medicaid Planning" that will be treated as Unlicensed Practice of Law (UPL).
That piece triggered several discussions with colleagues, and thus we have more information to share.
Stanford Law Professor Deborah Rhode, working with Lucy Buford Ricca, the Executive Director of Stanford's Center on the Legal Profession, has a relatively new article in Fordham Law Review's annual colloquium issue that deepens Rhodes' long-standing concerns about the potential impact of treating certain "nonlawyer" conduct as sanctionable under state UPL rules. In "Protecting the Professor or the Public? Rethinking Unauthorized-Practice Enforcement," Professor Rhode begins with the history behind her earliest examination of the utility of "do it yourself kits" in areas of underserved legal needs, such as divorce. In her most recent Fordham piece, she also builds upon her 1981 survey of UPL enforcement procedures across the 50 states, by making a close examination of over 100 reported UPL decisions issued in the last decade. Rhode and Ricca conclude that UPL enforcement needs to be more consumer-oriented and less driven by narrow interests of lawyers in protection of specialized practice. They advocate that a "more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar." Their article is a must read for any Bar group considering UPL issues, including those arising in the elder law or estate planning context.
Along that same line, the American Bar Association is hosting its second "UPL School" in Chicago on April 17-18. The purpose is to provide "a central forum for volunteer members of state and local bar UPL committees and commissions, and those charged with the prevention and prosecution of UPL violations to discuss current UPL challenges." (The first such "ABA UPL School" was held in 2013, focusing on several areas including immigration, "notario" fraud, and mortgage relief or loan modification vendors.)
Monday, January 19, 2015
If you were retiring, would you want marketers of insurance products and funeral services -- or similar products -- obtaining your name and address from your former employer? Pennsylvania's Right-to-Know Law could be permitting just such access to information on a large number of state retirees.
In a decision issued January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled the Pennsylvania State Retirement System (SERS) failed to satisfy its burden to prove "a substantial and demonstrable risk" arising from a request for 15 years' worth of records containing the "names and addresses of all retirees" from the state. Therefore, the names and contact information of more than 1,000 retirees, or if deceased, the information on their beneficiaries, must be disclosed by SERS. And if SERS "failed" in carrying the burden of proving why this should not happen, as the opinion demonstrates, it was not for lack of trying.
The Court recognized an exception from disclosure for retired judges and law enforcement officers on the grounds of specific "personal safety and security" language tied to those positions, contained in Pennsylvania's Right-to-Know Law.
Wednesday, January 14, 2015
The New York Times ran an article about the "trend" among states to adopt "right to try" drugs, which allow critically ill patients to try drugs that have not yet been approved by the FDA. Patients Seek 'Right to Try" New Drugs reviews the issues presented by "right to try" laws. These "right to try" laws have been adopted in several states, according to the article, including Arizona, Colorado, Louisiana, Missouri and Michigan. What is truly the goal of "right to try" laws? Get unapproved drugs into the hands of those who need them, or something more?
According to the article, the laws are really about autonomy and control over one's final days.
The laws do not seem to have helped anyone obtain experimental medicine, as the drug companies are not interested in supplying unapproved medications outside the supervision of the F.D.A. But that seems almost beside the point to the Goldwater Institute, the libertarian group behind legislative efforts to pass Right to Try laws. “The goal is for terminally ill patients to have choice when it comes to end-stage disease,” said Craig Handzlik, state policy coordinator for the Goldwater Institute, based in Arizona. “Right to Try is something that will help terminally ill people all over the country.”
According to the article, 10 states are likely to take up "right to try" laws in the 2015 legislative session, with pre-filed bills in a few states so far. The article notes there are critics of such laws. The federal courts have already weighed in on "right to try" laws, with the case, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach , 495 F.3d 695 (D.C. Cir. 2007) (cert. denied, 552 U.S. 1159 (2008)). The "right to try laws" do have some limits, which the article describes, using Colorado as an example
The Colorado law, which is similar to ones in other states, permits terminally ill patients who have exhausted their treatment options — including clinical trials — to obtain therapies that have passed at least the first of three F.D.A. investigation phases. The law does not require companies to provide the treatment, nor does it mandate that insurance companies cover it; the law also allows insurance companies to deny coverage to patients while they use drugs under investigation.
For those patients who are terminally ill, there is help under the FDA rules for them to get access to unapproved drugs. "[T]he F.D.A. created a process for granting unapproved therapies to people with exceptional need. Called the “expanded access program” or “compassionate use,” the program ... is [the] way for terminally ill people to request an unapproved therapy after they are rejected from clinical trials." Criticism of the length of the FDA approval process isn't new, and even the "expanded access program" has critics, with an illustration provided in the article.
These "right to try laws" intend to speed up the process by eliminating the FDA involvement. "Once a physician and a patient determine that treatment is the right choice — and that other options have been exhausted — the pair approach the drug company for permission."
So "right to try" laws appear to be one more effort to preserve autonomy and give terminally-ill patients more options for their care; another tool in the tool chest that includes advance directives, POLST, PAD, and DNRs, to name a few.
A 90-year-old resident apparently wanted "out" of her personal care home in Pennsylvania -- but being kicked out probably wasn't the outcome her family wanted to see for their restless matriarch. The personal care home issued a discharge notice on safety grounds, due to her "continued exit-seeking from the building."
On January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled that a core right recognized in state and federal law for residents of "long-term care nursing facilities" -- the right to seek third-party review when the resident or family disagree with a facility's involuntary discharge or transfer decision -- does not apply to "personal care homes" under the state licensing and regulatory system. See Bouman v. Department of Public Welfare, Case No. 1262 C.D. 2014, decided November 14, 2014.
Perhaps a new facility was the best decision, but at age 90, the woman's options for settling into a new place may be very limited. The short opinion does not reveal whether other approaches, including behavioral "distraction" techniques that often are effective for those with dementia, were explored. And without an appeal right, families may have no effective way of advocating for those approaches.
Friday, January 9, 2015
Michigan Governor Rick Snyder signed Michigan Senate Bill 886 and related bills (SB 887, 888 and 889) into law on December 30, 2014. The new law is described as "an ongoing effort to continue to support consumer choice and protection while encouraging continued investments into vital care facilities" in the state of Michigan, focusing on continuing care retirement (CCRCs) and life care communities.
The law, titled the Continuing Care Community Disclosure Act, would appear to replace prior law, and thus it will be important to sit down with the new provisions and examine them carefully, especially given the announced reasons for passage. I'm guessing there might be some trade-offs here, with both consumers and providers having interests at stake. According to press releases, some of the "major" provisions of the new law include:
- A limit on amortization of the entrance fee to 1.5 percent for each month of occupancy
- A requirement for any continuing care community to register with the Department of Licensing and Regulatory Affairs (LARA)
- Setting a $250 registration fee and a $100 renewal fee
- Organizations must report if any executive officers or director has been convicted of certain felonies
- A feasibility study with a business plan must be included in each application
- Exemptions from promulgated rules governing different types of facilities could be granted if the rules interfere delivery of care or with moving residents between different facilities
- Regulations on the fees facilities may charge and how refunds are provided to potential and former residents
- A continuing care community could petition for a guardian if a resident became incapacitated and unable to handle his or her personal or financial affairs
The legislation reportedly had the support of LeadingAge in Michigan. I'm curious about the background on this new legislation -- perhaps some of our readers know the history and reasons for new laws here?
Tuesday, January 6, 2015
The New Mexico Court of Appeals recently rejected the claim by El Castillo, a Continuing Care Retirement Community (CCRC), for charitable property tax exemptions. I was particularly interested in this ruling, as I have visited the campus several times over the years, and have come to know many residents, who are some of the most active, socially aware seniors I've encountered. Just trying to keep up with 78-year old friends who are walking, walking, walking (at 7,000 feet) to their meetings can be a challenge. The campus is very pleasant, quite modestly appointed, and fairly compact -- but perhaps most important of all, it has a terrific location. I suspect that is a large part of the reason it is on the tax assessor's radar. The campus is just a few blocks from the heart of beautiful Santa Fe and steps away from Canyon Road's art galleries.
El Castillo has operated as a CCRC since 1971, with a Type A or "Life Care" structure, where residents age 65 and older pay non-refundable entrance fees, plus monthly service fees, with the expectation that all needs, whether in so-called "independent" apartments, assisted living units or nursing care, are provided on the same campus. El Castillo is not associated with a particular faith nor with any fraternal organization, but it has operated since its inception under Section 501(c)(3) of the Internal Revenue Code, and thus is exempt from income taxes based on historical rulings that permit charitable tax exemptions for "homes for the aged." However, as we have discussed in the past in this Blog, a state's standards for charitable property tax exemptions can be quite different than the IRS approach to charitable income tax exemptions.
State and local governing bodies are constantly in search of tax revenues, and CCRC campuses, especially in urban locations, can be a tempting target. Under New Mexico's state constitution, at Article VIII, Section 3, "all property used for educational or charitable purposes shall be exempt from taxation." Prior cases interpreting this provision did not require a facility to be operated "exclusively" for charitable purposes, but the landowner has the burden to show it operates "primarily and substantially for a charitable purpose."
Key to the court's denial of the tax exemption was its observation that El Castillo appeared to operate as a self-sustaining unit funded entirely by fees paid by residents, with little or no "charitable" base. The Court rejected El Castillo's argument that its charitable mission was to provide life-time care for residents who could (and sometimes do) become personally unable to pay, and that such a mission was only possible through "subsidizing" such residents by, in essence, pooling the fees paid by all residents. As demonstrated by contrasting rulings on property tax exemptions in other states, the financial analysis necessary to support a charitable use property tax exemption may require detailed analysis and advanced planning. There is a fine line for any nonprofit to balance costs, sources of revenues and the goal of sustainability. In some instances, I have seen denial of property tax exemptions be the final straw for some nonprofit operators, especially those struggling with rising costs or occupancy rates after the 2008 financial downturn.
In New Mexico, there is both a constitutional basis for seeking a property tax exemption and a statutory basis. The ruling on El Castillo -- which by the way, when translated from Spanish, means "The Castle" (a bit of irony perhaps, given the court's seeming hostility towards the exemption claim, pointing to the lack of "indigent" residents) -- was based only on the state constitution. It appears the tax assessor actually failed to perfect his attempt to appeal a separate portion of the lower court ruling that had granted El Castillo the right to charitable tax exemptions on statutory grounds. Thus, it would appear that El Castillo would not immediately feel the effects of the Court's ruling, at least not for the specific tax years at issue in the multi-year litigation. In a footnote, the Court of Appeals judges acknowedged that their decision on El Castillo creates a "dfferent result" than the same court's 2013 ruling on charitable property tax exemptions for a different life-care community, La Vida Llena, in Albuquerque, N.M. The Court distinguished the La Vida Llena ruling as based only on statutory grounds.
For the complete ruling, including a complex jurisdictional issue, see El Castillo Retirement Residences v. Martinez, Case No. 31, 704, decided December 17, 2014.
Monday, December 29, 2014
Christopher Robb is in his final year at Westminster College in Pennsylvania and for his senior Media project he tackled "filial laws." His impressive work included researching the history of such laws and studying recent court cases in Pennsylvania. He interviewed and filmed a host of individuals from across the state who have experience with recent trends in use of filial support laws by nursing homes to seek payment from adult children for bills not satisfied by the resident's resources, insurance or Medicaid. Chris Robb's resulting 15 minute video is titled, "Am I My Mother's Keeper?" Thank you for sharing it with the Elder Law Prof Blog!
Monday, December 22, 2014
The amazing things you find when you start cleaning your office! Here's a find. Notre Dame Law Professors Margaret Brinig and Nichole Stelle Garnett wrote a great piece for The Urban Lawyer on what are sometimes called "granny pads," or more formally, "accessory dwelling units." The authors track reform measures enacted in at least 12 states that either enable or mandate authority for such units, thus preventing local building or zoning limitations from restricting landowners to "one unit" per lot. Additional reforms have occured at some municipal levels. They point to experiences in California as a cautionary tale, however, suggesting that "local parochialism remains alive and well in American zoning codes, often buried in regulatory details that escape the attention of advocates and academics alike."
Here's a link to the full article, "A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism." I'm embarrassed to admit this particular journal issue was on the 2013 level of my cleaning efforts. Who knows what other gems may be hiding!
Friday, December 19, 2014
Starting on January 1, 2015, Pennsylvanians have new rules that apply in order to create effective Powers of Attorney (POAs). The changes are wrought by Act 95 of 2014, and were stimulated in large part by a case decided in 2010 that invalidated a POA that had been executed under suspicious circumstances. We discussed the background here.
There are important, and sometimes subtle options for principals to consider in accepting or rejecting the "default rules" in the Act. All of the changes were intended to provide better protections for principals from abuse by agents, but not all principals will want those protections, particularly if it means more risk of third-party intervention or oversight. For an up-to-date and thoughtful summary of the changes and implications, read ElderLawGuy Jeff Marshall's recent blog post on "What You Need to Know."
For attorneys seeking the latest information on POA drafting and best practices, the Pennsylvania Bar Institute is offering several CLE programs around the state in January 2015.
Saturday, December 13, 2014
AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.
Here's the link to a podcast of the December 12, 2014 segment.
December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, December 12, 2014
"Nonprecedential decisions" sometimes make me a little crazy. Talk about them? Ignore them? What if that's where all the action is happening on a tough topic?
This time I think it is important to report a nonprecedential decision, one of the few to emerge from the appellate courts in Pennsylvania in recent years where sons or daughters are not held liable under Pennsylvania's filial support law, and thus were not required to pay for the parent's nursing home care.
In the case of Rest Haven York v. Deitz, Case No. 426 MDA 2014, the Pennsylvania Superior Court issued a nonprecedential memorandum ruling on August 22, 2014. Mom resided in the plaintiff-nursing home for about two and a half years, and when she died there was an alleged unpaid bill of approximately $55k. No details are provided in the opinion about why that debt accrued or whether Medicaid was used for any payments. The amount is large enough to suggest something went wrong somewhere on the payment side of the ledger, but it also is not large enough to suggest that no payments were made.
The facility sued the resident's daughter, who was alleged to have "signed the admitting papers as agent under a power of attorney" executed by her mother. The complaint, filed three months after the mother's death, alleged breach of contract, implied contract, unjust enrichment, fraud, "and breach of duty to support" under Pennsylvania's filial support law, 23 Pa.C.S.A. Section 4603.
Daughter was granted summary judgment by the trial court, dismissing the entire suit. The only issue on appeal was whether the nursing home had "failed to provide evidence that could have allowed the trial court to declare [the mother] indigent." Indigency, an undefined term in the statute, is one element of Pennsylvania's filial support law.
The appellate court rejected the daughter's argument that indigency must somehow be declared or established by a judgment before a family member's support obligation can be triggered. However, the court also concluded that attaching a copy of the contract signed by the daughter, as agent for her mother, and attaching a copy of "overdue" charges on the mother's account did not suffice. Interestingly, the court then went on to offer a bit of a lesson on how nursing homes "could" prove their case -- so, a nonprecedential opinion with a moral?
"To present competent evidence to prove indigence, Rest Haven should have provided a bank statement or similar documentation attesting to [the mother's] financial condition."
In giving this lesson, the court cited two very precedential cases decided by the same court, Healthcare & Retirement Corp. of America v. Pittas (2012) and Presbyterian Medical Center v. Budd (2003).
As I often say to family members or lawyers who are startled to read about filial support law obligations, Pennsylvania appellate courts take this law very seriously when it comes to unpaid nursing homes. There are some defense strategies available, but a successful defense is not easy.