Tuesday, April 12, 2016

Does the Statutory Definition of "Elder Abuse" Matter?

In April 2016, Senators Richard Blumenthal (D-CT), Bob Casey (D-PA), Sheldon Whitehouse (D-RI) and Al Franken (D-MN), introduced Senate Bill 2747 in the United States Senate.  Carrying the title of "Elder Protection and Abuse Prevention Act," one provision of the bill would amend existing federal law to redefine "abuse," as that phrase is used in the Older Americans Act.  The new definition would read:

The term "abuse" means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.

The existing language, defining abuse, provides: 

The term “abuse” means the willful--
(A) infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish; or
(B) deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.
 
Is the proposed change mere semantics? 
 
A quick search reveals that the new federal language is identical to language contained in at least one state's statute, Rhode Island's Section 42-9.2-2, used to define the scope of administrative authority for the state's Elder Justice Prosecution Unit.  One of the sponsors of the new bill is from Rhode Island.  
 
However, Rhode Island's criminal statutes do not provide an exact match.  Rhode Island law does provide that it is a crime for any person "primarily responsible for the care of an adult with severe impairments" to "willfully an knowingly abuse, neglect or exploit that adult," and it defines "abuse" as "subjection of an adult with a severe impairment to willful infliction of physical pain [or] willful deprivation of services necessary to maintain the physical or mental health of the person, or unreasonable confinement."  But, by removing any age restriction but narrowing the crime to victims with "severe impairments," there is room for argument about application of that statute to all elderly victims, or those with "only" early stages of physical or mental impairment.  
 
So, what is the reasoning behind the proposed change of the federal definition of "abuse?" Abuse of an elder person is not a "federal" crime.  Certainly it would be useful to have the definition match any funding authorization, and  perhaps that is a reason, as the new language mirrors the definition of abuse contained in the Social Security Act's provision for block grants to states for social services and elder justice initiatives, at 42 U.S.C. Section 1397j(1).

April 12, 2016 in Crimes, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)

Friday, April 8, 2016

DOL Guidance Available for Families on Wage Payments to Home Care Workers

U.S. Department of Labor has a new guide book, "Paying Minimum Wage and Overtime to Home Care Workers," to assist families in understanding updated rules for payment of home care workers. These rules became fully effective on January 1, 2016.

The goal of the recently finalized  "Home Care Final Rule" is to "make sure that home care workers have the same basic wage protections as most U.S. workers, including those who perform the same jobs in nursing homes and group homes."   The rule applies "if you hire the worker directly, and no agency or other organization is involved," but may also apply if you hired the worker through an agency.  

Employers must keep certain basic records for home care workers, and these records will be key to determining proper payment, especially for overtime:

1. Full name;

2. Social security number;

3. Home address;

4. Hours worked each day and total hours worked each workweek;

5. Total cash wages paid each week to the employee by employer, including any overtime pay; and

6. Any weekly amounts claimed by the employer as part of wages for housing or food provided to the employee/.

The guide explains special rules that apply if the paid care provider is a family member or  if the paid worker is "living in."

In addition, the guideline explains the "narrow" exemption from minimum wage and overtime rules that applies for home care workers who provide only "companionship services."  The key here is that the the worker can be spending no more than 20% of his or her working time on tasks such as assisting with personal care (bathing, dressing, cooking, cleaning, etc.) and the worker is not performing any medically related tasks.  

April 8, 2016 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, April 4, 2016

Accountability in Guardianship & Conservator Cases: Latest from Nevada

Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis.   As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses.  As reported by the Las Vegas Review-Journal in an April 1, 2016 article:

An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.

 

District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.

 

Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.

 

But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.

For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices."  The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.

April 4, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Friday, March 25, 2016

Filial Friday: Family Caregiving & Standing Issues for Family Members

The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.  

The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws."  She concludes:

The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.

In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.  

In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."  

The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment.  "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a).  Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."    

For more see In re Skinner, ___ Fed Appx. ___, 2016 WL 850950 (3d Cir. 2016). 

March 25, 2016 in Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 24, 2016

More on Florida CCRC's Struggle with State Regulators -- and Workers

Earlier this week, I reported on the Florida Office of Insurance Regulation's actions affecting University Village, a Continuing Care Retirement Community (CCRC) in west Florida.  Additional events are now coming to the surface in media reports, including turmoil with employees over salary and benefits:

Workers from the Nursing Center at University Village made a lot of noise walking a picket line, protesting salary caps and reductions in benefits. This labor unrest comes while the new owners of University Village, Westport Holdings of Tampa, struggle to stop the state from yanking their license and shutting them down.

 

Health care workers represented by the Service Employees International Union are protesting working without a contract since December. Westport Holdings claims through the years the University Village nursing center was overly generous to its employees, and it’s time to reel in costs.

 

“What do they consider to be generous? I’ve been working with them for over 20 years and I haven’t seen $20 an hour yet,” Scott said.

 

Management wants to cap salaries and reduce health care benefits. It contends workers at University Village are paid more than employees at other local facilities.

For more, see News Channel 8's report on Employees Protest Benefit Cuts at Embattled Hillsborough Retirement Community.

March 24, 2016 in Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, March 22, 2016

LTC Insurance: More $ or Less Benefits?

Kaiser Health News ran a story on March 17, 2016 about long term care insurance policies. Long-Term Care Insurance: Less Bang, More Buck explains how one insured saw her premiums cost almost four times as much if she kept her same coverage. Although an important option for many middle-income Americans, it seems, from the article, that the industry has specific challenges facing it.

[I]insurers botched just about every aspect of the policies they sold in the early days of the industry, said Joseph Belth, a retired professor of insurance at Indiana University known as one of the insurance industry’s toughest critics. They underestimated how long people would live and how long they’d need nursing home care — but overestimated how many people would drop their policies and how much interest insurers could earn on the premiums they banked.

Hemorrhaging money, many insurers left the business. Those that remain are in financial trouble on their long-term care policies. They’re charging far more for new policies, and sharply raising the premiums of old ones.

Not as many companies are offering the coverage as once was and many policy holders may be facing a choice of increased premiums, reducing or dropping coverage. As well, the article notes that many folks don't know the limits of Medicare coverage for long term care.  Fewer people are purchasing the policies, but there are now some hybrid options on the market

Fewer people today are buying traditional long-term care insurance policies, which only adds to insurers’ financial woes. Some are considering newer “hybrid” products such as life insurance or annuities that provide a long-term care benefit, but they’re also expensive and some require a large up-front payment.

That’s why pressure is mounting for state and federal lawmakers to come up with ways to finance long-term care for millions of aging baby boomers. Policy proposals abound, such as requiring people to buy subsidized long-term care insurance, much as they now need to buy health insurance. Other ideas include creating a government-run catastrophic plan or allowing people to convert their life insurance policies to long-term care policies. But all of these would require legislative action, and lawmakers at the state and federal level have been slow to act because of the sheer scope of financing Americans’ long-term care.

March 22, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (1)

Monday, March 21, 2016

Florida Governor Signs Second Wave of Reform Laws for Public and Private Guardians

On March 10, 2016, Florida Governor Rick Scott signed into law additional rules for the state's use of guardians. The move comes on the heels of a first wave of reforms enacted in 2015

The two waves of legislation follow media reports and public protests in specific locations in Florida, including Palm Beach and Sarasota. The latest law establishes a new state-wide Office of Public and Professional Guardians, and includes directions that the Office establish a system for appointment and monitoring of trained professionals, to serve where necessary as limited guardians, guardian advocates or plenary guardians.  Such "public" guardians are intended to be a last option, when family members are inappropriate, unable or unwilling to serve. 

In addition to the legislative actions, there are reports of court-directed changes to address potential conflicts of interest that could reduce the incentive for critical review and oversight.  For example, in Palm Beach, media reports put a spotlight on relationships between judges and lawyers in that county and especially on one judge's spouse, a lawyer who often received court-appointments and who was criticized for billing and accounting practices in some cases where she was the court-appointed guardian. 

For earlier reports on Florida's guardianship history, see this Blog's report on "Florida to Consider Establishment of Office of Public and Professional Guardians."

For a longer perspective on the recognized need for more effective state systems for guardianship review, see the GAO report (11-678), released in 2011, that warns that "Given limited funding for monitoring, [state] courts may be reluctant to invest in [better] practices without evidence of their feasibility and effectiveness."  See also GAO 2006 report (06-1086(T)), titled "Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People."

Further, for findings and recommendations made to the Uniform Law Commission following a summit in 2011, see University of Missouri Law Professor David M. English's report, "Amending the UGPPA to Implement the 3rd National Guardianship Summit."

March 21, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, March 20, 2016

Old and Behind Bars

We have previously written about the topic of elder inmates and the implications for prisons with the graying of the prison population. Here is one more story on the topic, published March 17, 2016. Pew Charitable Trust's Stateline (which "provides daily reporting and analysis on trends in state policy....") ran the story, Elderly Inmates Burden State Prisons.

Nearly every state is seeing that upward tick in elderly state prisoners. In Virginia, for example, 822 state prisoners were 50 and over (corrections officials usually consider old age for prisoners to begin at 50 or 55) in 1990, about 4.5 percent of all inmates. By 2014, that number had grown to 7,202, or 20 percent of all inmates.

For state prisons, the consequence of that aging is money, more and more of it every year. Health care for aging prisoners costs far more than it does for younger ones, just as it does outside prison walls. Corrections departments across the country report that health care for older prisoners costs between four and eight times what it does for younger prisoners.

In terms of reducing the number of elder inmates, according to the study, some states are using diversion programs, early release or compassionate release.  We all have heard about increasing longevity, but that doesn't necessarily explain the rise in elder inmates. The story notes that correctional personnel offer two factors to explain this rise: "[o]e is a steady increase in the rate of older adults entering prison. The second, and more potent, factor is changes enacted in the get-tough-on-criminals 1990s that resulted in longer prison sentences."

Knowing about the physical limitations some may have as they age, one can only imagine the accommodations prisons have had to make, including the use of "ramps and shower handles and ... other physical modifications. Many prisons have had to create assisted living centers with full-time nursing staffs.... In addition, at least 75 U.S. prisons ..., provide hospice services for dying prisoners...."

One prison mentioned in the story has an ALF, but the waiting list is such that prisoners must need assistance with 2 or more ADLs to be considered. Poor health when entering prison is not unusual. And being old and in prison may be even tougher than for younger inmates.

Prison is a particularly treacherous place to get old. Getting to a top bunk is difficult for many aging prisoners, as is climbing stairs. Hearing loss, dementia and general frailty can make it difficult to comprehend or obey rules. And being infirm in an institution full of young predators can make older prisoners vulnerable. “If there’s an old lion or gazelle... the young ones are going to take advantage.”

Once they get out, finding a place to go becomes another challenge according to the article. Some states have taken different approaches to deal with the graying prison population, from financing the facilities that provide the needed care (such as a dementia unit in the prison) to  contracting with a private facility to provide the care to "geriatric conditional release."

And what about the likelihood of reoffending?  "Studies have found that older ex-offenders are less likely than younger ones to commit additional crimes after their release. But politicians and the public don’t seem willing to release former murderers, rapists and sex offenders, even though they are decades removed from their crimes and physically incapable of repeating them...."

March 20, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Florida Authorities Issue Suspension Orders for CCRC in Tampa

On March 16, 2016, the Florida Office of Insurance Regulation issued suspension orders affecting University Village, a Continuing Care Retirement Community (CCRC) in Tampa, Florida. Long-Term Living publication reports:

The first order states the facility was acquired illegally. IMH Healthcare, LLC, the general partner of the new ownership, does not have approval to operate as a licensed CCRC provider.

 

The second order makes several allegations against University Village for violating provisions of Florida’s Insurance Code for:

  • failing to comply with the OIR’s target examination and filing false information;
  • failing to fulfill statutory and contractual obligations to residents, estates of former residents and prospective residents, including failing to pay more than $4 million in refunds owed to residents;
  • continuing to accept new residents while being financially insolvent; and
  • engaging in fraudulent or dishonest management practices.

For more on the OIR action, read Tampa Times coverage, "Florida Officials Move to Suspend  Tampa's University Village Retirement Home." 

The events that led to this state action are somewhat unusual. For earlier reports on the long-simmering issues, see Channel 8 News Report from September 2015: "Owner Claims, State Lying, Retirees Suffer."   See also a Tampa Bay Times article from February 2015, "State Looks into Alleged Financial Problems at Tampa Retirement Community."

March 20, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Friday, March 18, 2016

Does California's New "Revocable Transfer on Death (TOD) Deed" Increase Risk of Elder Abuse and Estate Costs?

Colleagues in California recently shared with me information on California's adoption of statutory recognition of "Transfer on Death Deeds" or TODs under AB 139.  The law was signed by the Governor on September 21, 2015 and became effective on January 1, 2016.  The law includes "simple" forms, both for establishing the "revocable" transfer of title, and for any "revocation" of such a deed.  Proponents of the legislation cite simplicity and low cost as advantages of using such deeds. The legislative history for the law explains:

The bill would provide, among other things, that the deed, during the owner’s life, does not affect his or her ownership rights and, specifically, is part of the owner’s estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owner’s death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.

Critics of the law, including California Advocates for Nursing Home Reform (CANHR), warn that despite the "simple" label, the appropriate use of such transfers in estate planning is anything but simple, and such deeds pose another opportunity for undue influence and manipulation of elders.  

The spring issue of CANHR's Advocate newsletter (available via subscription, following a "donation" to the organization) further comments:

It is important to note that thousands of California citizens who are 55 years of age or older and who have recently signed up for health care under California's Medic-Cal expansion program will now have their estates subject to Medi-Cal recovery when they die. If their homes were transferred before their deaths, transferred to an irrevocable trust or if they transferred the property and retained an irrevocable life estate (another cheap, but effective way to transfer property) there will be no estate claim on the home.  But, because the [new law's] TOD is revocable and the transfer and the transfer of the property under a TOD does not occur until the death of the owner, these TODs are subject to estate recovery, which means that those same low-income elders, who are likely to execute TODs will also be more likely to be on Medi-Cal and thus [inadvertently] subject their estates to recovery.

CANHR is "embarking on a campaign to educate consumers about the impact" of the new California law.

March 18, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Housing, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 17, 2016

Los Angeles Times: "Visitation Rights" Bills Under Consideration in Ten States

To follow up on an earlier Elder Law Prof Blog post about recently enacted "visitation rights bills," we note that the Los Angeles Times has reported on advocacy efforts by high-profile children such as Catherine Falk, daughter of actor Peter Falk, and Kerri Kasem, daughter of Casey Kasem, in support of similar legislation in other states: 

Though Falk and Kasem work independently, they've become a powerful one-two punch for reforming visitation laws, stumping for change in more than 30 states. Falk says her proposed legislation is now being considered in 10 states; Kasem's bill has already been adopted in three — California, Iowa and Texas.

 

The two agree their efforts are getting notice because of their celebrity fathers, and have little problem with such an advantage. "This isn't the Casey Kasem Bill, or the Mickey Rooney Bill, or the B.B. King Bill," Kasem said, referring to other personalities who went through similar elder battles. "It's the Visitation Rights Bill, and it affects thousands in the U.S."

The comments posted in reaction to the article are also interesting, with some pointing out that in both the Kasem and Falk families, the disputes involved women married for decades to the celebrities in question.   Others point to the question of how ordinary families cope with these kinds of access issues, especially without the money or time to pursue rulings by courts.

For more read "These Children of Celebrity Dads Are Taking Their Stepmoms to Court."

March 17, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 14, 2016

Al Jazeera America Reports on "Guardianship Fears" in Nevada

Here is a 12 minute account of two families involved in older person guardianships, where the court appointed a single, non-family member as guardian in Clark County, Nevada.  The presentation is by Al Jazeera America, aired for the first time in March 2016:

 

The events in Nevada have sparked larger concerns about "guardianship abuse."  The video is both disturbing and frustrating, especially as we hear primarily from family members in the presentation. There are hints of important, underlying legal issues, including:

  • adequacy of notice to alleged incapacitated persons (AIP) prior to any court proceeding;
  • adequacy of notice to family members of the AIP
  • proper use of guardians ad litem
  • availability of legal counsel to the AIP
  • what procedural requirements exist for a finding of incapacity
  • what definition is used for incapacity
  • whether limited guardianships are used, and if not, why not
  • what training, if any, is given to guardians
  • what accounting methods are used for review of conserved funds

The important topics revealed in the news reports seem ripe for in-depth research by objective academics, including law school academics. Anyone looking for that "hot" topic for next summer's project?  

For earlier Elder Law Prof Blog posts on this topic see:

If the Issue is Accountability, Which is Better? Power of Attorney or Guardianships?

WSJ: Are Guardianship Systems Under Critical Review? 

Removal of Private Guardian is Latest News in Challenge to Nevada Elder Guardianships

March 14, 2016 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 10, 2016

Sign of the Times? West Virginia Runs Out of Money for Indigent Burial Program

One of my regular searches on legal research engines is for "filial support" and "indigent support." This month that search turned up pending legislation in West Virginia that appears to be on a fast track. West Virginia House Bill No. 4380 proposes to add "spouse" to the list of family members who may be personally liable to pay funeral service expenses.  On first glance, the bill didn't seem all that surprising to me as the bill appeared mostly to be plugging a hole in a law that already made children, father, brothers and sister, and the mother of the deceased potentially liable for such costs.  If you are going to include all of those family members, why not the spouse?

However, as I dug a little deeper, I noticed the bill also would cap state responsibility for indigent death-related services at "not more than $1,000" for cremations and "$1,250 for those who are buried." The bill would increase the documentation of financial need, including copies of bank statements and income tax information for the deceased, before state assistance can be granted.

It turns out that these bills are sad evidence of the increased number of requests for indigent burial assistance in West Virginia.  A spokesman for the state agency supervising the program explained to legislators that the $2,050,000 fiscal year budget would "run out of money by the end of" February, 2016."  There were already some 1,820 indigent burials in 2015.  

For more on this sign of tough times, see the West Virginia press story, "WV Burial Program for Poor to Run Out of Money." 

March 10, 2016 in Consumer Information, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 7, 2016

The Casey Kasem Legacy? States Adopt "Notice, Communication and Visitation" Laws

In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.  

Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.  

To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:

  • Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause."  Changes to the law became effective on July 1, 2015.
  • Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications.  For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
  • California, Assembly  Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail."  The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care.  For more on the California legislation, signed by California  Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.

These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect.  It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.

Continue reading

March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Wednesday, March 2, 2016

Making a Decision On a CCRC?

The New York Times ran a story at the end of February about the appeal of a Continuing Care Retirement Community or CCRC.  (Just a note that LeadingAge, a group of aging service organizations is using Life Plan Communities). The Everything-in-One Promise of a Continuing Care Community examines the appeal of CCRCs.  Looking at how it works, the article discusses the often-times hefty entrance fee and compares that to a "fee for service model". The article explains what one gets (and what one doesn't) when one is signing a CCRC contract: "[k]eep in mind that few of these contracts involve direct, conventional purchase of a housing unit. In most cases, the resident buys only the lifetime right to live in a community, take advantage of its range of amenities and services, and receive care there. The units generally are not bought and sold on the open market."

My co-blogger, Professor Pearson is quoted in the article discussing regulatory oversight and transparency:

“There’s a lack of transparency with C.C.R.C.s that’s resulted in weaker trust,” said Katherine C. Pearson, a professor at the Dickinson School of Law of Pennsylvania State University who has testified before Congress on the issue. “You need to visit several facilities, talk to residents, look at past cost increases and five years of financial records.”

Professor Pearson, who talks with continuing care community residents around the country, said there was no one rule of thumb to use when evaluating these communities. A prospective resident generally wants a community that is active and engaged and “supports healthy living,” she said. But given the magnitude of the decision (after all, it is often the last major purchase someone will ever make), it deserves very careful consideration.

“Get as much financial information as you can,” she said. “This is not an impulse buy.”

The article offers some practical advice when considering a CCRC. The article notes it isn't as easy as an apples to apples comparison since there is no government rating system of CCRCs and "[t]he major drawback in evaluating continuing care communities is the complexity of their contracts, which come in a number of variations. Some may require a deposit of up to $1 million, while others may charge only monthly fees. Refunds may be difficult to obtain and depend upon the length of stay and other requirements. Contract details have to be read carefully and financial statements reviewed."  The article suggests

  • review of the contract by a team of professionals, and look specifically at the contract regarding refunds of the entrance fee, whether there is a rescission period, how a decision is made if the resident needs a higher level of care and the financial stability of the company.
  • visiting the CCRC and talking to residents and staff. Visit all areas of the CCRC.

  • compare several CCRCs and check with the appropriate state agency for any complaints filed vs. the CCRC. Ask around-the article suggests the local senior center might be a good place to find out more.

     

March 2, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Retirement, State Statutes/Regulations | Permalink | Comments (4)

Friday, February 26, 2016

Filial Friday: "Updating Connecticut's Filial Responsibility Statutes"

Quinnipiac Law Student Katherine C. Clark has recently published a note titled "Duty to Reform: Updating Connecticut's Filial Responsibility Statutes," in the Quinnipiac Probate Law Journal (Vol. 29, page 45, 2015).

The author argues for repeal of Connecticut's criminal law and modifications of the state's civil laws regarding filial obligations, arguing in part that:

Connecticut should define indigence to include only those elderly people receiving state assistance, and those whose total income falls below a certain amount. This limited definition ensures that those elderly people who have a legitimate need for assistance would have their needs met.
 
 
Additionally, using those two benchmarks could limit any sort of fraudulent claims. It is relatively easy to determine if a party receives state assistance, so that verification is not overly burdensome. However, by also taking into account the total income, parents who are not recipients of state assistance, but who still have unfulfilled needs, may still gain access to the care they need. Another important consideration is determining at what age parents are entitled to protection. Setting a specific age, such as 65, would make it clear when the statutory obligation begins.
 
The full article currently appears available only through a paid service, such as Lexis.  

February 26, 2016 in State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, February 17, 2016

Advocacy, Aging and the NaCCRA Example

May Day Parade in Belfast 14 Pensioners' ManifestoIn 2010, I spent several months of my sabbatical in Northern Ireland.  I soon learned that older people there are highly organized and very visible, working together on issues such as protection from abuse, housing, utility costs, elder care options, access to benefits and more.

They knew that their best chances for success were to band together to tackle problems. They knew that they could not depend on a few to keep the work going, and they consciously brought "younger" seniors into leadership positions to keep the advocacy teams well staffed and to provide continuity of effort.  Plus, they were not shy about presenting a unified national platform of concerns and recommended solutions -- as suggested by that year's "Pensioners' Manifesto," promoted at parades and public gatherings.  The advocacy plan was supported by AgeNI, Age Sector Platform, Changing Ageing Partnership and other "separate" organizations.  

In the US, seniors' concerns often cross jurisdictional boundaries, including state boundaries.  The distances are farther apart in the U.S. than in Northern Ireland, but again there can be power in organizing.  As part of my research, I've been watching several groups across the country using the power of the internet to share information and "gather " in order to advocate for solutions to common problems.  A key to success seems to be advocating from a position of strength in numbers and shared concerns.

One of the U.S. organizations I've watched closely has been the National Continuing Care Residents Association or NaCCRA, a national body that grew out of early advocacy on behalf of residents in life care and continuing care residences in Florida. Residents came to recognize that as much as they appreciate and even love their individual communities, there are often common concerns about matters such as provider accountability for entrance fees and service fees paid by residents, understanding Fair Housing and ADA rules for residents with disabilities, residents' rights during changes of "ownership," resident rights during provider insolvency, reorganizations or bankruptcy, transparency of management decision-making and more. NACCRAlogo   

NaCCRA has both individual members and state chapters, and recently, resident-members in the State of Washington recognized that stronger funding of the national organization through the state chapters is needed to support effective advocacy at every level.  By comparison, the senior housing providers certainly share information (and money) on a national basis -- see e.,g., LeadingAge and American Seniors Housing Association -- especially when addressing their advocacy positions with regulators and government leaders.

It will be interesting to see whether residents in CCRCs and Life Care communities in other states join Washington residents in supporting a strong national team through NaCCRA.  

February 17, 2016 in Health Care/Long Term Care, Housing, Retirement, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, February 16, 2016

New York Summer Internship Opportunity for Law Students Interested in Protection of Older Adults

Our friends at the Weinberg Center for Elder Abuse Prevention sent application information for law students interested in a summer 2016 internship in New York:

The David Berg Center for Law and Aging is seeking select students for its Summer 2016 internship programs. The Center focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation. 

 

Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale.  Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse. 

 

Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will potentially be exposed to legal practice in all five boroughs of New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse. 

 

Past issues have included HIPAA regulations, questions surrounding legal capacity, immigration, powers of attorney, Medicaid eligibility, copyright, and right to privacy.  The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters.  The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. To apply, please send a resume, cover letter and writing sample to deirdre.lok@hebrewhome.org.

February 16, 2016 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Grant Deadlines/Awards, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, February 10, 2016

Criminal History Not Bar to Employment in SNF In Pa.

Elderlawprof blog founder, elderlaw prof extraordinaire and renaissance woman, Professor Kim Dayton sent the following article Nursing homes free to hire applicants with criminal histories; Pennsylvania won't appeal decision striking down law .  According to the article, the state has decided not to appeal a decision striking a Pennsylvania law  that "prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories." The article explains that the law contained a lifetime employment ban in the state's APS statute.  Part of the challenge to the law is that the statute didn't differentiate  between the types of crimes, circumstances or even when the crime was committed, so something minor or a crime committed decades ago would count in imposing the lifetime ban.

The opinion is available here.

February 10, 2016 in Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, February 2, 2016

Challenge to Attorney General's "Outsourcing" of Consumer Protection Suits Against Nursing Homes Fails in PA

In GGNSC v. Kane, decided January 11, 2016, the Pennsylvania Commonwealth Court rejected a challenge by owners and operators of long-term care facilities to the use of a private law firm to investigate and pursue claims based on alleged improper billing, contracting and marketing practices.  The ruling was 6 to 1, with the lone dissenting judge not filing an opinion.

In the challenge, begun as a declaratory judgment action, the Facilities contended the investigations were "not based on any material consumer complaints," but were instead based on efforts by the law firm (Cohen Milstein) to generate lawsuits in Pennsylvania and other states. In Pennsylvania, beginning in 2012, the Pennsylvania Office of Attorney General signed a contingent fee agreements with the Cohen Milstein law firm, which has a history of pursuing class action suits in business and consumer protection areas. The Court permitted the Pennsylvania Health Care Association, a trade group for some 450 long-term care providers in the state, to join the Facilities' challenge as a petitioner.  

In July 2015, the Facilities' challenge was "overtaken" by a Consumer Protection Law enforcement lawsuit filed by the Pennsylvania AG against two GGNSC facilities and 12 Golden Living nursing homes. Cohen Milstein was listed as counsel representing the State.  Some of the Facilities' original arguments for blocking the Cohen Milstein investigatory actions became moot after the consumer protection suit was filed or could be addressed in the enforcement suit, according to the Commonwealth Court decision.  (Other states have also contracted with Cohen Milstein to bring nursing home cases, including New Mexico.) 

However, the Facilities continued to argue that only the Pennsylvania Department of Health (DOH) had "authority" to investigate or pursue litigation regarding quality of care.  The Commonwealth Court disagreed:

Any investigation or enforcement action initiated by OAG is directly related to "unfair or deceptive acts or practices" purportedly committed by the Facilities with respect to the staffing levels at their facilities.  As a result, while minimum staffing levels may be regulated by DOH for health and safety purposes, any representations, advertisements or agreements that the Facilities made with their residents with respect to staffing levels, whether in accord with those required by statute or regulation or not, may properly be enforced by OAG through its authority conferred by the Administrative Code and the Consumer Protection Law. Such action is proper under the foregoing statutes and does not constitute any impermissible administrative rulemaking regardless of whatever evidence OAG uses to establish a violation, including any type of staffing model.  What OAG is seeking to enforce is the level of staffing that the Facilities either represented, advertised, or promised to provide to their residents and not what level OAG deems to be appropriate for the care of such residents.

Further, the Commonwealth Court ruled the Facilities "lacked standing" to challenge the OAG's use of a private law firm to investigate or prosecute the claims under the Administrative Code or the Consumer Protection Law, citing the Pennsylvania Supreme Court's similar ruling in Commonwealth v. Janssen Pharmaceutica, Inc. in 2010, a suit  about alleged off-label drug prescriptions, pursued with the assistance of contracted outside counsel. 

The outsourcing of state claims for consumer protection suits raises interesting issues.  Such financial arrangements with outside law firms may be especially attractive to states in terms of risk/reward potentials, as the private firms typically agree to fund all or a portion of litigation costs for the class-action-like suits, with lower contingent fee percentages (10 to 20%) than you would see when such a firm handles suits on behalf of  private plaintiffs.  The option could be attractive to financially-strapped states or "embattled" state prosecutors such as the Pennsylvania AG.

Companies, particularly health care companies, have organized efforts to resist what they see as "abusive" lawsuits generated by private law firms.  As one industry-focused report argues here, private firms lack a proper "public" perspective, failing to take into account the impact on business development, while also arm-twisting companies to extract settlements, arguing this comes at a high-dollar cost to the state's residents. 

February 2, 2016 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)