Background and Aims
The ageing US population is providing an unprecedented population of older adults who use recreational drugs. We aimed to estimate the trends in the prevalence of past-year use of cannabis, describe the patterns and attitudes and determine correlates of cannabis use by adults age 50 years and older....
Tuesday, December 27, 2016
The mayor of DC signed aid-in-dying legislation for the District which now has to be sent to Congress for a 30 day review period. Bowser quietly signs legislation allowing terminally ill patients to end their lives explains that the law is based on Oregon's statute. Congress has 30 days to approve or override it, Washington, D.C., Approves Aid-in-Dying Bill.
Monday, December 26, 2016
Attorney Tim Nay ( NAELA's first president by the way), recently posted on listservs about the Oregon Supreme Court's opinion on the state Medicaid agency's rules regarding estate recovery. The Oregon Supreme Court, in Nay v. Department of Human Services, affirmed the court of appeals decision that the administrative rules were invalid:
In 2008, the department amended its administrative rules regarding the scope of that recovery. The amended rules allow the department to recover the payments from assets that the recipient had transferred to a spouse up to five years before a person applies for Medicaid. Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals. The Court of Appeals agreed with petitioner that the amendments were invalid ... and the department sought review. As we will explain, we conclude that the rule amendments are invalid under ORS 183.400(4)(b) because they exceed the department’s statutory authority. Accordingly, we affirm the Court of Appeals. (citations omitted).
After reviewing state family law and probate law (elective share) and the arguments advanced by the Department of Human Services, the Oregon Supreme Court concluded
The department promulgated rule amendments that allow it to obtain estate recovery from transfers made to a spouse within the five years before a person applies for Medicaid. Our standard for judicial review is whether the department exceeded its statutory authority ..., and more specifically whether the rule amendments depart from a legal standard expressed or implied in the particular law being administered.... Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department’s statutory authority..... The Court of Appeals correctly held the rule amendments to be invalid. (citations omitted).
The opinion is available here.
Congrats Tim and thanks for letting us know!
Sunday, December 25, 2016
The National Center for State Courts, in conjunction with the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) released its Strategic Action Plan 2016 Adult Guardianship Initiative which was adopted on December 1, 2016. According to the report "[t]he mission of the Adult Guardianship Initiative is to improve state court responses to guardianship and conservatorship matters. This Initiative encourages the use of less restrictive alternatives, the prioritization of the protected person’s individual rights, active court monitoring and oversight, the modernization of processes, and the restoration of rights."
The initiative has 4 goals:
Develop and maintain a partnership of key stakeholders ...
Prioritize the protection and enhancement of individual rights ...
Promote modernization and transparency in the guardianship process ...
Enhance guardianship/conservatorship court processes and oversight ...
The initiative also lists several concept projects: (1) Funding and Implementing a Guardianship Court Improvement Program; (2) Conservatorship/Guardianship Accountability Project: Building a National Resource that uses Technology and Analytics to Modernize the Process; (3) National Summit for Courts on Improving Adult Guardianship Practices; (4) Establishing Judicial Response Protocols to Address Guardianship Abuse, Neglect and Exploitation; (5)Developing a Mentor Guardianship Court Program; and (6) Building a Research Portfolio and Developing Court Performance Management Systems.
Visit the Center for Elders and the Courts for more information.
December 25, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, December 22, 2016
Kaiser Health News reported that "a coalition of emergency and social service providers is working to create an electronic registry for POLST forms so they will be available to first responders and medical providers when they are needed. The group is starting with a three-year pilot project in San Diego and Contra Costa counties that could serve as a model for a single, statewide registry. Paper-based POLST forms are used across the nation, but electronic registries exist only in a few states, including Oregon, New York and West Virginia."
The article, California Tests Electronic Database For End-Of-Life Wishes, explains that the registry is envisioned as a cloud-based portal where the providers would load the forms. The advantage, of course, is that the provider would have access to the POLST regardless of the patient's location. Since multiple agencies are involved, there are some hurdles to overcome to make this a reality. One expert quoted in the article prefers that the registry be expanded to include advance directives as well as POLST forms.
Wednesday, December 21, 2016
Last week Colorado's governor signed the medical aid-in-dying bill on December 16, 2016. The law went into effect immediately, according to an article in the Denver Post, Colorado medical-aid-in-dying law signed by Gov. John Hickenlooper, takes effect immediately. The law had strong support from voters. The week before the Governor signed the bill into law, the Denver Post ran an article that many folks in Colorado were already making inquiries about requesting the prescriptions. The article noted that the request form for those patients with terminal illness has been made "available on the Compassion & Choices website. The Colorado Department of Public Health and Environment will keep the form, along with an attending-physician form, and track the number of people who seek to use the law."
Thursday, December 15, 2016
Baby boomers are getting high in increasing numbers, reflecting growing acceptance of the drug as treatment for various medical conditions, according to a study published Monday in the journal Addiction.
The findings reveal overall use among the 50-and-older study group increased “significantly” from 2006 to 2013. Marijuana users peaked between ages 50 to 64, then declined among the 65-and-over crowd.
The article notes that the researchers call for more study regarding the long-term effects of the use of pot and that health care providers should be careful to not assume that an elder doesn't use drugs: "Joseph Palamar, a professor at the NYU medical school and a co-author of the study, said the findings reinforce the need for research and a call for providers to screen the elderly for drug use... 'They shouldn’t just assume that someone is not a drug user because they’re older,” Palamar said."
The article discusses the disparity of approaches between states that have legalized marijuana use and the federal government position.
The push and pull between state and federal governments has resulted in varying degrees of legality across the United States. Palamar says this variation places populations at risk of unknowingly breaking the law and getting arrested for drug possession. The issue poses one of the biggest public health concerns associated with marijuana, Palamar says.
But unlike the marijuana of their youth, seniors living in states that legalized marijuana for medicinal use now can access a drug that has been tested for quality and purity, said Paul Armentano deputy director of NORML, a non-profit group advocating for marijuana legalization. Additionally, the plant is prescribed to manage diseases that usually strike in older age, pointing to an increasing desire to take a medication that has less side effects than traditional prescription drugs.
The full article, Demographic trends among older cannabis users in the United States, 2006–13 is available for a fee here. The abstract explains
The prevalence of past-year cannabis use among adults aged ≥ 50 increased significantly from 2006/07 to 2012/13, with a 57.8% relative increase for adults aged 50–64 (linear trend P < 0.001) and a 250% relative increase for those aged ≥ 65 (linear trend P = 0.002). When combining data from 2006 to 2013, 6.9% of older cannabis users met criteria for cannabis abuse or dependence, and the majority of the sample reported perceiving no risk or slight risk associated with monthly cannabis use (85.3%) or weekly use (79%). Past-year users were more likely to be younger, male, non-Hispanic, not have multiple chronic conditions and use tobacco, alcohol or other drugs compared with non-past-year cannabis users.
The prevalence of cannabis use has increased significantly in recent years among US adults aged ≥ 50 years.
Tuesday, November 22, 2016
We blogged earlier about the discussion regarding switching Medicaid to block grants. The impact of doing so would be far reaching and the Commonwealth Fund released an issue brief, What Would Block Grants or Limits on Per Capita Spending Mean for Medicaid?
Here is the abstract from the issue brief:
Issue: President-elect Trump and some in Congress have called for establishing absolute limits on the federal government’s spending on Medicaid, not only for the population covered through the Affordable Care Act’s eligibility expansion but for the program overall. Such a change would effectively reverse a 50-year trend of expanding Medicaid in order to protect the most vulnerable Americans. Goal: To explore the two most common proposals for reengineering federal funding of Medicaid: block grants that set limits on total annual spending regardless of enrollment, and caps that limit average spending per enrollee. Methods: Review of existing policy proposals and other documents. Key findings and conclusions: Current proposals for dramatically reducing federal spending on Medicaid would achieve this goal by creating fixed-funding formulas divorced from the actual costs of providing care. As such, they would create funding gaps for states to either absorb or, more likely, offset through new limits placed on their programs. As a result, block-granting Medicaid or instituting “per capita caps” would most likely reduce the number of Americans eligible for Medicaid and narrow coverage for remaining enrollees. The latter approach would, however, allow for population growth, though its desirability to the new president and Congress is unclear. The full extent of funding and benefit reductions is as yet unknown.
The article provides history, data and discusses strategies. The Brief concludes that the issue, and the resulting outcomes, are not as simple as may be presented.
As the country’s largest insurer, Medicaid is subject to the same cost drivers that affect all providers of health insurance: population growth and demographic trends that increase enrollment, health trends that influence how often people need care and what kind of care they require, and advances in technology that drive up costs, among other factors. But unlike commercial insurers, government-funded Medicaid, in its role as first responder and safety net, is more vulnerable to these trends and to cost increases. For more than 50 years, Medicaid has been rooted in a flexible federal–state partnership, constantly restructured over time to meet current challenges.
Any attempt to restructure federal financing for Medicaid and replace flexibility with strict spending limits—whether in the form of block grants, per capita limits on spending, restrictions on what counts as state expenditures, or a combination of all three—would divorce funding considerations from the real-life needs that have informed federal and state Medicaid policy for half a century. Crucially, a per capita cap would permit population growth to occur. But the limit of lawmakers’ appetite for continued growth in enrollment is unclear. Given how states responded to the relatively mild and temporary funding reductions the federal government enacted in 1981, sweeping changes like those currently under consideration are likely to produce far more substantial fallout.
The 10 page issue brief can be downloaded as a pdf here.
Monday, November 21, 2016
Medicaid block grants...again? Not only is Medicare in the spotlight for revamp, so too is Medicaid. Kaiser Health News reported this in Millions Could Lose Medicaid Coverage Under Trump Plan. The article explains
One major change endorsed by both Trump and House Speaker Paul Ryan (R-Wis.) would transform Medicaid from an entitlement program into a block grant program.
Here’s the difference. In an entitlement program, coverage is guaranteed for everyone who’s eligible. The federal government’s commitment to help states cover costs is open-ended. The states’ obligation is to cover certain groups of people and to provide specific benefits. Children and pregnant women who meet specific income criteria must be covered, for example.
The article notes that this isn't the first time that block grants for Medicaid has been proposed. "Turning Medicaid into a block grant program has been discussed for more than 25 years, but the idea has always met resistance from some states, health providers, health care advocates and Democrats. Even with a Republican majority in Congress and Trump in the White House, the plan would still face an uphill legislative battle."
And don't forget the statements regarding undoing the Affordable Care Act:
The biggest risk for Medicaid beneficiaries comes from pledges by Trump and other Republicans to repeal the Affordable Care Act, which provided federal funding to states to expand Medicaid eligibility starting in 2014. Thirty-one states and Washington, D.C. did so, adding 15.7 million people to the program, according to the government. About 73 million are now enrolled in Medicaid — about half are children.
The article focuses on some of the other options that may be considered in determining whether to make changes to Medicaid.
All these proposed changes are a lot to take in. So hang on and stay tuned.
Friday, November 11, 2016
Save the Date: February 13, 2017, the 6th Annual Health Law Conference at Florida State University. This year's conference is titled Patients as Consumers: The Impact of Health Care Financing & Delivery Developments on Roles, Rights, Relationships & Risks. The program's learning objectives include
Appreciate the ways in which the role of the individual who is purchasing and receiving health care services is changing from one of passive patient to that of a consumer who is expected to influence, if not determine, his or her own health care
Understand the legal and ethical ramifications of the individual’s changing role from patient to consumer for the physician and other health care providers with whom the patient/consumer maintains a professional relationship
Manage the physician’s legal responsibilities and risks associated with the changing professional relationship engendered by expectations that patients will take on a more consumer-like role regarding their own health car
Identify major developments (e.g., aggressive consolidation of health care insurers and providers into mega-entities, the incentivized development of new coordinated product delivery entities such as Accountable Care Organizations, the proliferation of electronic health records, and replacement—on both mandatory and voluntary bases—of fee-for-service arrangements by various value purchasing strategies such as Pay for Performance (P4P) and bundled payments) in contemporary U.S. health care delivery and financing
Topics include Evidence-based Medicine & Shared Decision-making, Impact of Cost Containment Initiatives on Patient Rights and Provider Liabilities, and Patient Populations at Particular Risk of Not Controlling Their Own Medical Choices.
Registration is free unless seeking CLE credits. For more information or registration, click here.
Tuesday, November 1, 2016
With just a few more days until the election, Coloradans are considering whether to vote in favor of physician aid-in-dying. Colorado Wrestles With Ethics Of Aid-In-Dying As Vote Looms published by Kaiser Health News (KHN) explains why some are supporting the measure, and others are opposing it. As well, both sides are gathering large amounts of money to support their positions:
The ballot initiative is drawing passion — and plenty of money.
According to the latest filings with the Colorado Secretary of State’s office, backers have raised about $5.6 million, mostly from Compassion & Choices Action Network.
The “No Assisted Suicide Colorado” campaign has raised $2.4 million. That money is primarily coming from the Roman Catholic Archdiocese of Denver, which has donated $1.1 million, as well as other archdioceses around the country.
The Colorado Medical Society has taken a neutral position and the story offers some statistics about doctors' views of the measure, with a majority (although it's close) supporting the measure.
Tuesday, October 25, 2016
The New York Times ran an article recently on individuals voluntarily refusing nutrition and hydration as a way to speed up the end of life. The VSED Exit: A Way to Speed Up Dying, Without Asking Permission focuses on individuals who voluntarily give up eating and drinking. We know that only a handful of states offer Physician-Aided Dying and even in states where that is legalized, not everyone fits within the parameters of the statute. "In end-of-life circles, [the] option [voluntarily giving up food and fluids] is called VSED (usually pronounced VEEsed), for voluntarily stopping eating and drinking. It causes death by dehydration, usually within seven to 14 days. To people with serious illnesses who want to hasten their deaths, a small but determined group, VSED can sound like a reasonable exit strategy."
The article notes that for individuals who avail themselves of VSED, no law seems to be needed (although there is still some uncertainty on that point), no court intervention is required, but the individual needs a lot of fortitude, “'It’s for strong-willed, independent people with very supportive families,' said Dr. Timothy Quill, a veteran palliative care physician at the University of Rochester Medical Center."
One unanswered question is whether VSED is "legal".
For a mentally competent patient, able to grasp and communicate decisions, probably so, said Thaddeus Pope, director of the Health Law Institute at Mitchell Hamline School of Law in St. Paul, Minn. His research has found no laws expressly prohibiting competent people from VSED, and the right to refuse medical and health care intervention is well established.
Still, he pointed out, “absence of prohibition is not the same as permission.” Health care professionals can be reluctant to become involved, because “they want a green light, and there isn’t one of those for VSED,” he added.
The question grows much murkier for patients with dementia or mental illness who have specified VSED under certain circumstances through advance directives. Several states, including Wisconsin and New York, forbid health care surrogates to stop food and fluids. (Oregon legislators, on the other hand, are considering drafting a bill to allow surrogates to withhold nutrition.)
The article reports on a recent conference and some of the issues discussed there. The article also explains that with VSED, death doesn't come as quickly as with PAD, leading to issues for patients and caregivers. The article also notes there are (or likely could be) obstacles to using VSED, such as positions taken by long term care facilities or specific religions.
This topic would be great for a class discussion.
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Thursday, October 20, 2016
Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions. In a perfect world, merit-based criteria should be the issue, not age. At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire. The whole family was involved, but it needed to happen.
During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges. The spring initiative read:
Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?
The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary. I voted yes, knowing that many of the most capable judges were still in their prime at 70+
However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative. Instead, in the upcoming general election the following initiative will appear:
Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?
Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like the hide-the-ball tactics. He joined others and challenged the language. His word for the tactic? "Deceitful."
Who had the final say on which language would be used? Ironically, the Pennsylvania Supreme Court. In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.
Wednesday, October 19, 2016
The most recent issue of Governing magazine contains an article on the upcoming vote in Colorado on aid-in-dying. Colorado Could Strengthen Aid-in-Dying Movement explains "[t]he movement has been slow to gain momentum -- Oregon was the first state to legalize aid in dying in 1994. But Colorado could reignite the cause in November. Voters there will be weighing Proposition 106, a ballot measure modeled after Oregon's. It would give mentally competent adults with a medical prognosis of six months to live the right to request a prescription to end their lives. Two doctors must agree."
The article notes that looking at past state referendums, one would think the odds are long for Colorado approving the measure. But "Colorado ... may beat the odds. According to a September poll, 70 percent of Colorado voters support the measure, 22 percent oppose it and 8 percent are undecided."
As to be expected with this type of legislation, there are supporters and opponents. Two of the state's newspapers urged voters to not support the bill. The governor of Colorado supports the bill, saying: '"It’s not about suicide.... These people are going to die anyway. They’re terminally ill… I think they should have that right to have medical advice, medical supervision, be able to make sure they have the final say themselves."'
University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.
From the abstract:
This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.
This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics. Thank you, Dick.
Monday, October 17, 2016
Arizona has two interesting initiatives on the 2016 ballot for the November 8th election. One is Proposition 205, which would legalize recreational marijuana if passed; the other is Proposition 206 which would increase the state's minimum wage from $8.05 per hour to $10 per hour in 2017 (and incrementally thereafter to $12 by 2020), plus require employers to provide paid sick leave (40 hours annually for large employers and 24 hours annually for small employers). Guess which Prop is getting the lion's share of attention on media airwaves? Nonetheless, both measures are high profile and certainly the wage initiative should be carefully considered.
Mark Young, who is president of the Arizona In-Home Care Association, and operates a home care company in Arizona, offers an interesting perspective on the potential impact of higher minimum wages in a column published recently on the Opinion page for the Prescott Daily Courier. He opens:
He cites Seattle's increase of minimum wage to $15/hour as evidence of an corresponding increase for the average cost of in-home care to nearly $35 per hour, making such services "out of reach for many seniors." He continues:
Even more concerning is the potential unintended consequences of Prop 206: The emergence of an underground market which would place liability and risk on our most vulnerable community members. This could result in increased financial, physical, or even mental abuse by predators targeting seniors and disabled adults and children – a segment of our society already at risk.
As our senior population grows the demand for skilled caregivers has been increasing dramatically. If the cost to employ skilled caregivers goes up while the pool of available workers shrinks, many in-home care agencies will be forced to meet demand by hiring workers who are less expensive but also less experienced which could negatively impact overall quality of care.
The affordability argument for home care I understand, but I'm pretty darn skeptical of an argument that keeping the official minimum wage under $10 per hour protects against predatory behavior by home care workers. Nonetheless, it will be interesting to see how Arizonans vote on these two propositions, especially given the state's often libertarian take on conservative politics. At least one poll shows Arizonans favor the incremental increases under Prop 206 to $12 per hour.
Monday, October 10, 2016
In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease. See here, here and here, for example. The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys -- the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.
The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.
October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?
My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities. As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up. This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.
The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq. The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result.
CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs." CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s. CMS further explains (at page 399 of the 700 page commentary to the new rules):
Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . .
We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.
Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”
By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).
The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016:
Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.
“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.
LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.
“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.
Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development.
October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, September 30, 2016
Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim
I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania. A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.
In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support" law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied. N.J. filial support obligations are more limited than those affecting families under Pennsylvania law. Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents. See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question. The disabled son was 29.
The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language. At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.
Wednesday, September 28, 2016
I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?" It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client. The "family" is generally not the answer to "who is your client?," even if you represent more than one family member. From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:
By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.
Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%.
The case was settled, and Silva’s staff deposited the check into her operating account. A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.
While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.
The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory. Different accounts for different clients. While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction. The $64,000 question just got a whole lot more expensive for that lawyer.
My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.