Wednesday, October 18, 2017
You may have read recently about a woman who had an advance directive that addressed artificial nutrition and hydration. The SNF where she lived was hand feeding her, over her husband's objections. The trial court sided with the SNF and the state ombudsman who had argued that "state rules to prevent abuse required the center to offer residents three meals each day and provide help eating, if needed." Can one provide in her advance directive that she refuses in advance oral fluids and foods at some point in the future? The Kaiser Health News article, Dementia Patient At Center of Spoon-Feeding Controversy Dies, explores the specific case as well as the issue. The patient, as the title explained, died last week.
Here's the issue illustrated in this matter.
At issue is whether patients with Alzheimer’s and other progressive diseases can stipulate in advance that they want oral food and liquid stopped at a certain point, hastening death through dehydration. It’s a controversial form of what’s known as VSED — voluntarily stopping eating and drinking — a small but growing practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, usually resulting in death within two weeks. .... “The right to VSED is reasonably well-established, but it’s when a person isn’t competent that’s the issue,” said Paul T. Menzel, a retired bioethicist at Pacific Lutheran University in Tacoma, Wash., who has written extensively on the topic.
So in thinking about a person saying no to food and fluids, "VSED doesn’t require a law or a doctor’s approval. But the question of whether it’s possible for people who can no longer actively consent to the procedure remains ethically and legally unclear. That’s especially true for patients who open their mouths to accept food and fluids...."
Have you looked at your state's laws to see if there is a position on this? According to the article, almost 24 states have laws on "assisted feeding" some of which "specifically prohibit withdrawing oral food and fluids. Other states address only artificial feeding or are unclear or silent on the issue [and] ... Idaho — appears to sanction withdrawal of assisted feeding by a health care proxy" according to an expert quoted in the article. However, "Idaho state law also prohibits any form of assisted suicide and requires “comfort care” for patients if artificial nutrition and hydration is withdrawn. It’s not clear whether a request to halt assisted feeding would be honored" said an expert on Idaho's statute on Medical Consent and Natural Death Act.
October 18, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Friday, October 13, 2017
The National Guardianship Association takes the understandable position that "guardians are entitled to reasonable compensation for their services," while bearing in mind "at all times the responsibility to conserve the person's estate when making decisions regarding providing guardianship services" and in setting their fees. See NGA Standard 22 on Guardianship Service Fees.
Should there be "schedules" for fees, such as hourly fees, or maximum fees? Modern courts often struggle with questions about how to determine fees, and some states, such as Pennsylvania, have a fairly flexible list of common law (not statutory) factors for the court to consider.
In a April 2017 trial court opinion in Chester County, PA, for example, the court reviewed $54k in fees for the lawyer appointed to serve as guardian, and another $13k in fees for an attorney the guardians had hired. According to the court, "Neither had sought leave of court prior to paying these sums out of the principal of the estate; the court learned of this when its auditor reviewed the annual report wherein these payments were disclosed." The ward in question was 87-years old and a resident in a skilled nursing faciility, with dementia and other health issues. The court struggled with the bills, commenting the format used was "inordinately difficult to follow" and at least on first review seemed "high for ten (10) months." For guidance in evaluating the bills, the court did "two things. It first searched the dearth of cases available for any guidance." It also called the individuals to discuss the billing formats and learn more about the work completed.
The Pennsylvania precedent was almost exclusively unpublished opinions, often from trial courts. The Chester County court recounted some of the history of guardianships, from English times to colonial courts to the present, concluding, "In any event, no reported decisions have been located concerning professional compensation of guardians of the persons. Apparently, society had no need of their services until more recent times."
Ultimately, Chester County Court of Common Pleas's Judge Tunnell approved the fees, finding "a number of untoward events which transpired during the year in question," including a serious injury the ward sustained from a fall in the nursing home, additional health related concerns, the decision to relocate her to a different nursing home, and difficulties in selling the home that had remained empty for more than year. The case had a history of accounting disputes, as evidenced by a 2013 decision by the same judge, although it did not appear anyone had challenged the latest fees reviewed sua sponte by the court in the 2017 decision.
In another Pennsylvania opinion, this time from an appellate court but also unpublished, the court observed, apparently with approval, that in Allegheny County, the Guardianship Department in the Orphan's Court uses "court investigators" to review guardians' requests for payment of fees from the incapacitated person's estate. See e.g., In re Long, Superior Court of Pennsylvania, February 14, 2017 (not officially reported).
I'm curious whether our readers have thoughts on "scheduled" fees for guardians?
Thursday, October 12, 2017
Daughters' Hidden Video Camera In Mother's Nursing Home Documents Caregiver Abuse; 10th Circuit Affirms $1.2 Million Damage Award
The 10th Circuit in Racher v. Westlake Nursing Home Limited Partnership, d/b/a/ Quail Creek Nursing & Rehab Center, affirmed an award of $1.2 million in compensatory damages to the estate of Mrs. Mayberry, a 90+ year old resident. Key evidence included five video recordings, from a camera hidden in the resident's nursing home room by her daughters, that showed:
... [Employee] Gakunga slapping Mrs. Mayberry in the face with latex gloves, wadding up the gloves, stuffing them in Mrs. Mayberry's mouth, and forcibly holding them there as Mrs. Mayberry attempts to push Gakunga's hand away. . . . . [A second employee] Kaseke is seen in the videos watching this take place. . . . . The videos then show Gakunga and Kaseke roughly lifting Mrs. Mayberry from her wheelchair into bed and Gakunga pushing on Mrs. Mayberry's face in what appears to be an attempt to make her lie down. . . . One clip shows Gakunga pointing her finger at Mrs. Mayberry and apparently scolding her or perhaps threatening her. . . . Finally, the video clips show Gakunga “performing some sort of compressions with both hands to [Mrs. Mayberry's] torso.” . . . . Plaintiffs assert that this action was intended to force Mrs. Mayberry to empty her bladder so the caretakers would not have to change her diaper as often. . . . . Quail Creek and the caretakers denied any knowledge of this practice, but acknowledged that there was no medical justification for the action.
The daughters testified their mother went downhill as a result of the incidents that occurred between February and early April 2012 and that Mrs. Mayberry died in July 2012 "just three months after the abuse was discovered."
One issue on appeal was whether Oklahoma's "statutory limitation on noneconomic damages" of $350,000 was mandatory. Apparently the statutory cap was raised for the first time in a motion to "alter or amend the judgment," 28 days after the judgment was entered in the case and more than a month after the jury trial concluded. In its September 28, 2017 opinion, the 10th Circuit had an interesting analysis of the interplay between federal rules of civil procedure and the need to "predict" state substantive law in a diversity case, and "agreed with the plaintiffs that the cap is an affirmative defense that [defendant nursing home] waived."
October 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, October 11, 2017
During the last several years, I've received calls from around the country about possible guardianship "oversight" concerns. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I've been getting more calls. The question arises: Is there a pervasive problem with court-appointed guardians for older adults in the United States?
In my opinion, the answer is "no, not pervasive." At least, that's my answer if the definition of pervasive is "universal," or omnipresent, or rife, or widespread. In the 20+ years I've been working in elder law, I've unfortunately reviewed a lot of cases of exploitation, but it is comparatively rare that I've been asked to examine a court-monitored guardianship where there was a problem created by inadequate attention by the courts, much less active misconduct by the court or agency. Granted, that is just one law professor's experience.
Still, in my opinion, the oversight problems that do exist within the U.S. are significant, periodic, sometimes recurring or persistent, and often have common elements. The issues can exist in any county court or fiduciary administrative system. Historically, these courts -- sometimes called probate courts, fiduciary courts, surrogate courts, or orphans courts -- depended on the guardians for management of all issues, once the appointments were made. The judges trusted their appointees to take their fiduciary responsibilities seriously. But, as is sometimes said in international relations, the problem can be how best to "trust, but verify" proper behavior. With more elder boomers, there can be increased need for guardians, and thus more potential for guardians to be monitored.
- For example, in Maricopa County, Arizona, an investigative news series, that began in 2008 with the reporting of Laurie Roberts for the Arizona Republic, described a number of mishandled older adult guardianships. In some instances, the family members were so busy arguing about money, that the incapacitated elder was ignored, while his or her estate was diminished to pay fees. Sometimes the question was whether a "full" guardianship was even necessary. The problems, once investigated not just by journalists but by the courts, resulted in changes in Arizona guardianship law.
- In Palm Beach County, Florida, complaints about appointment of a particular individual as guardian in a large number of cases, focused on conflict of interest and claims of favoritism by the court, complaints that came from a number of families. Eventually, in one case challenging the system, a jury reportedly awarded more than $16 million against two West Palm Beach attorneys for "breach of fiduciary duties." The complaints also led to state investigations of Florida's entire oversight systems, and brought three years of legislative changes to Florida guardianship laws.
- Most recently, two co-founders of a nonprofit guardianship company, Ayudando Guardianship, in Bernalillo County, New Mexico were indicted in federal court in July 2017 with criminal charges including conspiracy, mail fraud, aggravated identity theft, and money laundering. The company was the appointed fiduciary in hundreds of cases.
Especially when the Clark County, Nevada cases are included in this list of recent challenges to guardianship oversight systems, concerns about proper and objective oversight are real; without a equally real commitment to more careful selection, training, monitoring and accountability for guardians, the problems can be predicted to increase as the baby boomer generation of seniors get to their 70s, 80s, or 90s. In 2016, the GAO for the United States responded to a U.S. Senate Special Committee on Aging's request for data on "the extent of abuse by guardians," and concluded that "courts lack comprehensive data on older adults in guardianships and elder abuse by guardians, but some courts have limited information." Unreliable data certainly leaves open the potential for the occasional problems to become pervasive problems.
October 11, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)
Tuesday, October 10, 2017
A recent story reports on the Florida governor's statement calling on a state Constitution Revision Commission "to include provisions to protect residents of nursing homes and assisted living facilities." Scott Wants Nursing Home Rules In Constitution reports that the Florida Governor is calling on the Commission "to consider adding 'permanent measures to put patient safety first.'" The constitutional amendments will be voted on in the November, 2018 election.
Meanwhile, the nursing home in Hollywood Florida where the deaths occurred filed suit challenging the state's moratorium on admissions as well as suspension from the state's Medicaid program. Broward Nursing Home Expands Lawsuit Against State explains that the facility is seeking an injunction.
Stay tuned, there's a hearing on the facility's motion before the end of the month.
Effective October 26, 2017, another set of requirements comes into play for notaries public in Pennsylvania. The changes, which became effective in stages over the course of many months, responded to reports of abuses. Indeed, when I was supervising our Elder Protection Clinic at Dickinson Law, we would occasionally come into contact with powers of attorney or deed transfers that were allegedly signed in from of a notary as a witness, but which clearly were not.
On one occasion, we learned that another law office "routinely" had the in-office notary using her official power for documents signed in the home of the attorney's clients. She was following her boss's direction. Sadly, our law students had an extra lesson that day on potential obligations to report such violations to the State Bar.
The most recent changes to Pennsylvania's law include a notary's mandated attendance at training classes. The notary was, even before the latest changes, required to have "personal knowledge" or "satisfactory evidence" of the identity of the individual whose signature was to be notarized, but the most recent changes specified documents that can be used as satisfactory evidence: "a passport, driver's license or government-issued nondriver identification card, which is current and unexpired," or another form of government identification which is current and "contains the signature or photograph of the individual, and is satisfactory to the notarial officer." 57 Pa.C.S.A. Section 307. A third alternative is documenting identity through "verification on oath . . . of a credible witness," a vague process that seems to raise more red flags than it eliminates.
Overall, the changes are a sad reflection of the times, not the least of which are the extraordinary opportunities for identity theft triggered by data hackers. Some Pennsylvania elder law attorneys, however, are wondering whether the requirement of current, unexpired government i.d. cards will make it more difficult to meet the needs of disabled, older clients.
Sunday, October 8, 2017
Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary:
Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.
These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.
Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.
Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.
The issue brief offers 7 recommendations including requiring (1) emergency generators, (2) prior coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.
Friday, October 6, 2017
The last few weeks have been very tough, haven't they? As have the last few months, and perhaps even the last few years.
Many seem to be trying to understand why a 64-year-old "retired" man in the U.S. would assemble an arsenal of weaponry, unleash it on a crowd of innocents enjoying a last few weekend hours of music, and then take his own life. While it is, on a comparative scale, unusual for a 60+ individual to be involved in a mass shooting, "older men" apparently have a comparatively high suicide-by-gun rate. While there may be no way to understand the motivation for the most recent murders, there are still reasons to ask whether aging and deteriorating cognitive health can be factors in gun-related deaths.
In the search for some understanding I read Leah Libresco's opinion piece in the Washington Post: "I used to think gun control was the answer. My research told me otherwise."
In that article, her research on the annual 33,000+ gun deaths in America, led her to several interesting observations and conclusions. She writes, for example, that the statistics showed her:
- "Two-thirds of gun deaths in the United States every year are suicides."
- "Older men, who make up the largest share of gun suicides, need better access to people who could care for them and get help."
Libresco's essay sent me in turn to a feature story, part of a FiveThirtyEight series analyzing annual gun deaths, on "Surviving Suicide in Wyoming," by Anna Maria Barry-Jester. She writes in greater detail about warning signs of deteriorating mental health, especially among older men: isolation, sometimes self-imposed; sleeplessness; depression; anxiety; and unresolved physical health problems.
As these articles point out, limiting access to guns is appropriate for individuals with suicidal thoughts. That's different than "gun control laws." And while guns may too often be the means to effectuate "rash desperate decisions," these researchers also suggest the greatest need is for better public awareness and response to warning signs, and for improved diagnosis and access to effective care, including social, mental and physical health care.
October 6, 2017 in Advance Directives/End-of-Life, Crimes, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, October 4, 2017
New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships
The New Yorker Magazine offers "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.
In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”
There are fundamental issues at the heart of this kind of history. Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself. But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.
My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly.
October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 2, 2017
The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds. It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."
Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners. A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law. The mother-in-law later challenged the transaction as contrary to her understanding and intention.
Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts. They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.
As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.
Not so fast. Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process.
October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, October 1, 2017
Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017. Not a violent contact and apparently not one involving physical or mental injury. But clothing was removed and fluids were later documented. Now residents are being transferred and more than 70 employees will reportedly be laid off.
As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities. A criminal investigation found no grounds for prosecution. A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports. The actual closure action was made voluntarily by Genesis.
Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:
- Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"?
- How far must a LTC provider go to prevent intimate contact between residents?
- After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
- How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?
- Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?
October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, September 28, 2017
So, here we are again. Efforts underway at the federal level to repeal the D.C. aid-in dying law. The Washington Post reported that the House of Representatives voted to repeal the law. House votes to repeal D.C.’s Death With Dignity law; Senate has yet to act explains that "[t]he U.S. House on [September 14, 2017] passed a spending bill that would block five laws affecting the District of Columbia, including the city’s new assisted-suicide law." This is not the first attempt at the Congressional level to repeal the law but it is "the first time either congressional chamber has voted to repeal the District’s Death With Dignity Act... [and] District officials are watching for action from Sen. James Lankford (R-Okla.), who tried unsuccessfully to block the assisted-suicide bill earlier this year and is now chairman of the Senate Homeland Security and Governmental Affairs subcommittee with jurisdiction over the District."
Tuesday, September 26, 2017
Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment. The landlord was fully aware of the situation. Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time. However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.
What's the problem? When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her. Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.
Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease. In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment. The landlord didn't want a "demanding" resident!
The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.
I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care.
Wednesday, September 20, 2017
The Chicago Tribune ran a story on changes to Medigap policies, Why Seniors Should Choose Wisely When Selecting Medigap Supplement Insurance. The article explains that
In 2020, people who are on Medicare and don't already have what's known as Plan F or Plan C Medigap insurance won't be able to buy it because the federal government will close those plans to new participants. That means that when people go onto Medicare at 65, or if they switch Medicare-related insurance during the next couple of years, they are going to have to be diligent about scrutinizing insurance possibilities before some of those doors start to close.
If you are wondering why this is newsworthy, given that there are a number of other Medigap plans available, the story explains the popularity of Plan F.
In the past, people have tended to veer toward Plan F Medigap insurance when they wanted all retirement medical costs covered. Plan F is the most popular of the many Medigap insurance plans because it is the most comprehensive. It doesn't cover dental, vision, or medicine, but if retirees pay their monthly premiums they shouldn't have to pay anything else for doctors, tests or hospitals. Even medical care overseas is partially covered.
The article notes that over half of beneficiaries purchase Plans C or F. Then why would Congress do away with these popular plans? Well, according to the article, "the popularity of Plans F and C made them unpopular with federal lawmakers and brought about the change that will happen in 2020. In 2015, Congress decided to shut the doors on Plan F and C in 2020 to reduce government spending on Medicare. Although Medigap plans are purchased from private insurance companies, people use them along with Medicare provided by the government. Critics argue that Plan F makes it too easy for people to go to the doctor without thinking twice about the cost."
Even if a beneficiary has Plan F, after 2020, the beneficiary may see a rise in premiums "because the plan won't be taking in any more young, healthy people. As those in Plan F grow older and sicker, the insurance companies may go to government regulators and request the right to raise rates." The article notes that some advisers are suggesting beneficiaries take a hard look at Plan G. Of course, if Plan G becomes the new Plan F in terms of popularity, then it's likely that Plan G premiums will increase. One expert quoted in the article suggests that a Medigap policy be viewed as a lifetime choice and the beneficiaries need to be sure that the policy purchased is portable.
Tuesday, September 19, 2017
Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"
We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products. For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.
Recently In Texas, two competitors have been arguing over the definition of assisted living.
In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community. Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.
On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."
Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise. Harbor hired a private investigator to pose as a prospective client for LTIL. The investigator tape-recorded a sales representative for LTIL.
Arguably, it seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.
During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . . Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . . She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.
Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . . Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help.
Monday, September 18, 2017
Consumer Reports published an article that focuses on the terms of an ALF admissions contract. Putting the Assisted Living Facility Contract Under a Microscope starts with recommending that an elder law attorney review the contract before the client signs it. The article lists 4 key areas to examine, including responsible party provisions, costs of care, mandatory arbitration clauses and grounds for discharge. The article offers advice and things to look for within each of these areas. Among others, the article quotes Hy Darling, current president of NAELA and Shirley Whitenack, former NAELA president.
Over the weekend, Florida Governor Rick Scott announced he was "directing" state agencies to "issue emergency rules to keep Floridians safe in health care facilities during emergencies." Arguably, this an example of locking the barn door after the horses have escaped. On the other hand, especially with another hurricane already looming, certainly no political leader wants to be seen as doing nothing.
There are some important questions -- that can perhaps be translated into lessons -- emerging from the most recent tragedy with eight nursing home residents perishing from heat related complications in Broward County Florida after Hurricane Irma.
1. Should States Mandate Specific Equipment? For example, Governor Scott is seeking a rule that mandates "ample resources" including a "generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for a least 96-hours following a power outage." It should be clear, certainly after Katrina (2005), Harvey (2017) and Irma (2017), that some of the biggest dangers of extreme weather events ares not just the wind or rain or fire or other immediate impact, but the consequences of loss of power or other critical resources.
2. Can Inspectors Better Assure Compliance with Safeguards? Governor Scott's demands focus not just on the care facilities' obligations, but on the role of state and local officials to have a system of checks and balances to increase the likelihood the safeguards are actually in place and operable, and not "just" a written plan for the future.
3. What Safeguards Were Effective At Similarly Situated Facilities? News articles report some push back from providers to Scott's measures, who seem to be arguing feasibility and cost. But, certainly there were providers, faced with the same challenges as the Broward County nursing home, who were successful in protecting their residents. Perhaps the more important lesson to learn -- and learn quickly -- is what was affordable and effective?
Also, I think that there are some questions that can be raised about whether and how family members and the larger community might be able to help as part of a plan for disaster preparedness. Certainly not all, and perhaps not even most, families will be able to help in providing post-disaster assistance including temporary shelter. But, I think at a minimum, families would want to know what steps they might take to be part of the safety plan and post-event response.
In a case with sad facts, the lower court in Smith v. Smith certified a question to the Florida Supreme court as follows:
"Where the fundamental right of marry has not been removed from a ward [under state guardianship law], does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?"
During the guardianship proceeding at issue, apparently the original court had not specifically addressed the right to marry. In light of that fact, in its ruling on August 31, 2017, the Florida Supreme Court answered a slightly different issue, because it viewed the "right to marry" as being tied to the "right to contract," which had been expressly removed from the ward.
The Florida Supreme Court ruled that "where the right to contract has been removed [under Florida guardianship law], the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect."
Counsel representing the wife of the incapacitated "husband," argued that, in effect, such ratification had already happened, during a proceeding where the guardianship judge had made comments treating the marriage as "fact." The Supreme Court disagreed:
Although the invalid marriage between Glenda and Alan is capable of ratification under [Florida law], it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order ratifying the marriage or conducting a hearing to verify that the ward understands the marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court's statements here were not sufficient to approve the marriage. However, the parties are not foreclosed from seeking court approval based on our decision today.
The ward in the Smith case was not alleged to be older or elderly; rather, the determination of his lack of legal capacity followed a head injury in a car accident. Recognizing the larger implications about validity of a marriage occurring during a guardianship, however, the Real Property Probate Section and the Elder Law Section of the Florida Bar and the Florida chapter of the National Association of Elder Law Attorneys submitted amicus briefs, arguing generally in favor of a ward's right to marry and urging the Supreme Court to approve post-marriage ratification by the guardianship court.
Thursday, September 14, 2017
As investigations begin into the report of 8 deaths of residents at a single nursing home in Broward County Florida three days after the region was impacted by Hurricane Irma, it occurred to me to look into post-Katrina legal proceedings involving nursing homes.
It turns out that very recently, in June 2017, the Louisiana Court of Appeals (4th Circuit) affirmed an award of $1,000,000 in damages for pain and suffering arising from one elderly woman's death at a nursing home four days after Hurricane Katrina hit New Orleans in August 2005. The nursing home argued comparative fault on the part of the Corp of Engineers for its "negligent design, construction and maintenance of" flood control systems in the region. The Court of Appeals rejected the nursing home's arguments regarding "non-party fault" (emphasis added below):
Following our de novo review of the proffered and record evidence regarding non-party fault, we cannot say that but-for the conduct of the Corps of Engineers, Ms. Robinette would not have died from heat stroke on the second floor of Lafon five days after the City of New Orleans had issued a mandatory evacuation order.
The record shows that flooding at Lafon was not the cause-in-fact of Ms. Robinette's death. Only one foot of water entered the building, and that water receded quickly. Ms. Robinette was not harmed by the flood water. Ms. Robinette's cause of death was heat stroke and dehydration due to her exposure to sweltering heat for four days. And Ms. Robinette's exposure to those extreme heat conditions was caused by Lafon's refusal to follow its own Evacuation Plan, and by the inadequacy of Lafon's backup emergency power generator. But for Lafon's substandard conduct, Ms. Robinette would not have succumbed to heat stroke caused by the lack of electrical power.
Because the Corps of Engineers' conduct was not the cause-in-fact of Ms. Robinette's death, we find no fault by the Corps.
Wednesday, September 13, 2017
A couple of years ago, I was present when my father's dementia care facility -- a licensed assisted living community -- was doing a test of part of their emergency preparedness plan. The staged "emergency" for that particular test was "loss of air-conditioning," which for most of the year in Arizona and other locations in the south and southwest is a serious concern. With climate change, heat and air-conditioning systems are going to be even more critical in the future.
I was impressed that even without back-up generators, the facility had both a short-term and long-range plan. The long-term plan required staged evacuation to other locations. Of course, to be effective, any evacuation would depend on the "other" locations having working power systems, something that can't be certain in a large scale weather or similar emergency.
Sadly, as reported in the New York Times on September 13, following the damage caused by Hurricane Irma, there were several deaths at a long-term care facility near the coast in southeastern Florida. The rapidly developing story suggests that as many as eight deaths were tied to loss of air-conditioning, although not a complete loss of power to the facility. It is too early to know all of the relevant facts. But, what about the law? The NYT article notes that:
Florida requires nursing homes to have procedures to ensure emergency power in a disaster as well as food, water, staffing and 72 hours of supplies. A new federal rule, which comes into effect in November, adds that whatever the alternative source of energy is, it must be capable of maintaining temperatures that protect residents’ health and safety.
Does the federal regulation mandate emergency sources of air-conditioning? Although the highlighted language in the NYT article suggests the new federal rule "comes into effect" in November of this year, my read of the regulation says the effective date was November 15, 2016 -- in other words, last year.
9/14/17 Correction to above paragraph: It was bothering me that I saw more than one news article describing the Emergency Preparedness rule as not taking effect until November of this year. The "effective date" of the Rule is clearly November 15, 2016 -- but, the New York Times is correct -- Long Term Care facilities have "until" November 15, 2017 to "implement" their preparedness plans, including any plan for maintaining safe temperatures. The implementation deadline was in a previous version of the rule, not the version of the rule actually made "effective" on November 15, 2016. Another lesson for me in the need for careful reading of regulations!
Perhaps more importantly, here's the language of the federal regulation, at 42 C.F.R Section 483.73, governing emergency preparedness at LTC facilities:
The LTC facility must develop and implement emergency preparedness policies and procedures, based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, and the communication plan at paragraph (c) of this section. The policies and procedures must be reviewed and updated at least annually. At a minimum, the policies and procedures must address the following:
(1) The provision of subsistence needs for staff and residents, whether they evacuate or shelter in place, include, but are not limited to the following:(i) Food, water, medical, and pharmaceutical supplies.(ii) Alternate sources of energy to maintain—
(A) Temperatures to protect resident health and safety and for the safe and sanitary storage of provisions;(B) Emergency lighting;(C) Fire detection, extinguishing, and alarm systems; and(D) Sewage and waste disposal.