Tuesday, February 16, 2016
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 email@example.com.
Wednesday, February 10, 2016
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.
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.
Thursday, January 28, 2016
Earlier this month, CMS published a CMCS information bulletin with the subject, Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes . This is a re-release of the informational bulletin originally published in early July of 2014. Why? Because this informational bulletin is intended
to assist states in understanding how they may ament their current 1915(c) waivers and state plan (1905(a), 1915(i), 1915(j), and 1915(k)) personal care services to implement Fair Labor Standards Act (FLSA) changes in a timely way, and in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time during the workday that are likely compensable as the result of the DOL home care final rule.
CMS stands ready to help by providing "technical assistance to states seeking to adjust Medicaid reimbursement and other program policies to appropriately support FLSA compliance in home and community based LTSS. Additionally, DOL is continuing to provide extensive, individualized technical assistance." The focus of the bulletin is on home-care services that are use "self-directed service options" but the bulletin also notes "that FLSA implications also exist for services furnished through agency-delivered models."
Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.
In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian." On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law. She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.
The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs. Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.
Despite rejection of the POA as evidence of the mother's preference for a guardian, the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property."
In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney. In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute. The appellate court reversed:
The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created
These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.
January 28, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, January 26, 2016
Mother Jones, in the January/February 2016 issue, ran a story, My Right to Die: Assisted Suicide, My Family, and Me by Kevin Drum. This story starts with a personalized account of an individual who was terminally ill but didn't have the option of physician-aided dying. The story provides an in-depth look at the laws of physician-aided dying and the arguments, both for and against. The article then becomes even more personal when the author reveals his diagnosis of cancer for which there is no cure. He reviews his options for the future and remarks that the California law on physician-aided dying now provides an option he didn't have until the law was signed.
The author speculates: is "assisted suicide is the next big civil rights battle? The fact that four states have approved assisted suicide in just the past seven years suggests momentum may finally be reaching critical mass. What's more, if Gallup's polling is to be believed, the word "suicide" has finally lost its shock value. Still, legislation continues to fail more often than it passes, even in blue states like Massachusetts and Connecticut. Right now, it's just too early to tell." The article can serve as a good foundation for a classroom discussion.
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, January 7, 2016
As I reported frequently in 2015, in several jurisdictions around the U.S., family members are organizing to challenge abusive guardianships or conservatorships and to seek better accountability from court systems. Here are interesting video resources that examine issues, and which may provide useful opportunities for classroom discussion of this emerging movement.
See: Conservatorship: Legalized Elder Abuse (offering a perspective from California, by the Coalition for Elder and Dependent Adult Rights)
See also: Guardianships Under Fire (a 30 minute Contact 13 special, aired by KTNV on December 28, 2015, from Las Vegas, Nevada).
Wednesday, January 6, 2016
When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law. Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys. One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly." C.R.S.A. Section 6-1-112 provides that:
"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."
In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.
Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law.
Thursday, December 31, 2015
The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions:
Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....
To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.
The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.
In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary. Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:
Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.
The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.
Certainly I understand industry hostility to more regulations. At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting. A "carrot" rather than a "stick" to encourage reporting.
Our thanks to University of Illinois Professor Dick Kaplan for sharing this article.
Thursday, December 17, 2015
Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period. The Ops Memo #15-11--01, issued November 16, 2015, provides in part:
Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy. If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services.
Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed. Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.
It will be interesting to see "what happens next" in the world of Medicaid planning. My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.
Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada
As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons. According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."
A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets. During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual. Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution. On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation.
The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.
December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)
Thursday, December 10, 2015
While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks. Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:
- Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
- Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
- Pre-Death Contests: discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio. See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
- Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.
In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents, whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.
December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, December 9, 2015
Here's a summary of interesting, key findings from the complicated case of Moylan v. Citizens Sec. Bank, an "elder abuse" and wrongful termination claim with a long litigation history in Guam:
- Bank Comptroller Moylan realizes his grandparents have certificate of deposit accounts in his bank, with assets totaling more than $1 million.
- He notes that when the accounts rollover, they are no longer in the names of his grandparents, but rather solely in the names of two individuals identified as "caretakers" for the grandparents.
- Moylan proceeds to "investigate further" and concludes that multiple transactions on the accounts were suspicious, given his "personal knowledge of his Grandparents' advanced age and deteriorating mental condition."
- Moylan discusses his findings with his brother, an attorney, thus revealing bank account information without getting the permission of his Grandparents or the "caretakers" who were listed on the accounts.
- The brother advises that the findings may constitute "elder abuse" and thus trigger a mandatory duty to report the activity to Adult Protective Services.
- Moylan, fearing he may lose his bank job, encourages his father to make the report -- thus again sharing banking information without the consent of the listed account holders, the Grandparents and their caretakers.
Eventually, a guardians is appointed for the grandparents, the bank becomes a subject of the guardian's complaint about handling of the grandparents' accounts, the caretakers (one of whom is a family member) object to Moylan's "misuse" of his access to account information as a bank employee -- and, lo and behold, Moylan is fired in 2007. Moylan challenged his termination as wrongful.
In 2015, after more than 7 years of litigation in the courts below, the Supreme Court of Guam overturned summary judgment in favor of the bank on Moylan's wrongful termination claim. That's the good news for Moylan, as the Court recognizes a public policy exception to the "at will" nature of his employment contract:
Because the object and policy of the [Adult Protective Services Act] is to protect the elderly and disabled adults, the reporting requirements of 10 GCA §21003(a) should be construed liberally in favor of promoting the reporting of suspected abuse. This approach is consistent with the fact that the legislature chose to include the term “immediately” instead of a specified reporting deadline. Therefore, we hold that in the limited context of the facts of this case, Scott's oral reporting within seven days after the discovery of alleged abuse qualifies as sufficiently immediate....
Termination motivated by Scott's mandatory reporting would jeopardize the public policy to protect elderly and disabled adults from abuse because it would discourage future reporting. Scott presented evidence that at least one Bank executive knew that Scott had caused a report to APS before Scott was terminated.
Under Guam law, mandatory reporting of suspected elder abuse applies to "banking and financial institution personnel." 10 GCA §21003(b).
The bad news is the reversal sends the case back to the trial court for "further proceedings." The full opinion by the Supreme Court of Guam, issued November 20, 2015, linked above, is well worth reading, as it demonstrates both weaknesses and strengths of statutory attempts to mandate that banks report suspected elder abuse.
Tuesday, December 8, 2015
As I prepare to teach both Contracts and Elder Law in the spring semester of 2016, I'm reminded by a recent ruling of why I added Contracts to my teaching package a few years ago. Protection of older persons often depends on how contracts are written, whether we are talking about insurance, health care, nursing home admissions, or age discrimination.
On the latter point, the Supreme Court of North Dakota recently affirmed summary judgment in favor of the employer on a claim by an employee that her dismissal violated the age discrimination rules under the state's Human Rights Act, pointing to the fact that the employee's termination was consistent with her employment contract as an at-will employee. The court ruled:
[The employer] Altru provided evidence in support of its summary judgment motion that [the employee] Yahna was a vascular ultrasound technologist and was required to take on-call responsibilities because she was not a supervisor or manager. Although Yahna claims she retained her supervisor and quality assurance responsibilities after Altru restructured the ultrasound department and when she was terminated, her argument ignores the effect of Altru's restructured ultrasound departments. We decline to construe the Human Rights Act to preclude an entity from restructuring its business and altering employee job responsibilities. Yahna's conclusory assertions about her understanding or belief regarding her job responsibilities after the restructuring do not raise a disputed factual issue that she refused to perform the on-call requirements for a vascular technologist at the time she was terminated. Yahna's speculation about her job position is not sufficient to defeat Altru's motion for summary judgment and she has not provided competent evidence to raise a factual issue that she was not a vascular technologist when she was terminated and that she was treated differently than other vascular technologists in Altru's restructured ultrasound department. Viewing the evidence in the light most favorable to Yahna, the evidence does not raise an inference that she was discharged because of her age; rather, she was terminated because she refused to be available for on-call responsibilities required for vascular technologists after Altru restructured the ultrasound department.
For the full opinion, see Yahna v. Altru Health System, 2015 ND 275, published December 1, 2015.
Monday, November 23, 2015
Mass. Appellate Court Reinstates Legal Malpractice Verdict Following Flawed Medicaid-Planning Advice
In October 2015, the Massachusetts Court of Appeals addressed the question of whether there were damages flowing from a lawyer's Medicaid advice to an older couple. The lawyer had counseled that, for Medicaid planning reasons, the couple should not retain a life estate in a house purchased with their money but held in the name of their adult children. The court found the surviving mother suffered real damages, even if eviction from the house by her children was unlikely. Key allegations included:
Thirteen years later, in July of 2007, the Brissettes [the parents] and two of their four children, Paul Brissette and Cynthia Parenteau, met at [Attorney] Ryan's office to discuss the Brissettes' desires to sell the South Hadley home and to buy property located in Springfield. They discussed the prospect of putting the Springfield property in the names of Paul and Cynthia. Ryan told the Brissettes that if they reserved life estates in the Springfield property, they could be ineligible for Medicaid if they applied any time within five years of getting the life estates. He also told them that if they took life estates in the Springfield property, there could be a Medicaid lien against that property when they died. There was evidence that the Brissettes asked about “protection,” but Ryan told them that he did not feel that the Brissettes needed protection because they could trust their children to do what they wanted them to do. In reliance on Ryan's advice, the Brissettes decided that the Springfield property would be bought with their money but put in Paul's and Cynthia's names, and that the Brissettes would not have life estates in the Springfield house.
After her husband's death. Mrs. Brissette concluded she wished to own "her" home in her own name, but the children declined to re-convey the property to her.
During the malpractice trial, Lawyer Ryan conceded his advice about the effect of a life estate on Medicaid and/or a Medicaid lien was wrong, and expert witnesses also testified that the incorrect Medicaid advice was "below the standard of care applicable to the average qualified attorney advising clients for Medicaid planning."
Friday, November 20, 2015
Filial Friday: Court Finds Less Than "Ideal" Childhood Not Enough to Release Duty to Support Indigent Parent
It is, perhaps, a mark of the growing acceptance of filial support obligations in Pennsylvania courts -- although not necessarily equating with understanding by the general public in Pennsylvania -- that a recent appeal from a filial support ruling resulted merely in a "nonprecedential" opinion by the appellate court, one that adopts the findings of the lower court.
In Eori v. Eori, 2015 WL 6736193, (Aug. 7, 2015) the Pennsylvania Superior Court affirmed the trial court's award of $400 per month in support with a short opinion. This ruling obligates one son, the defendant, to contribute financially towards the care of his 90-year old mother, being provided in the home of another brother. The incorporated findings of fact, from the lower court, track a sad family story. One point in dispute was whether the mother's alleged actions during the son's childhood constituted the defense of "abandonment":
Defendant’s next error complained of on appeal pertains to the second defense Outlined in 23 Pa. C.S.A. Section 4603(2)(ii), which negates the obligation of filial support when it is established that the parent seeking support abandoned the child during a ten year period of the child’s minority. In this case, the Defendant argued that he was abandoned and raised as error number six that the trial court failed to consider said testimony. The term “abandoned” is not defined in the act itself, However, the Custody Act at 23 Pa.C.S.A. Section 5402 defines “abandoned” as “left without provision for reasonable and necessary care or supervision.” Defendant testified that he did not have the greatest family growing up and he wanted to get away. . . . He testified that his grandmother cared for him more than his Mother; however, they were never far apart because he testified that his grandmother either lived with Mother or beside Mother. . . . Although he testified that Mother was abusive, left and caused them to move many times, and was either gone or fighting, he never established that she left for a ten year period. He did not provide details or time periods on any of the testimony presented.
The lower court concluded: "Therefore, it was not clear from [son's] testimony that Mother ever left for a ten year period without provision for his reasonable and necessary care or supervision. Although it may not have been an ideal childhood, there was no evidence of abandonment to release Defendant from his obligation to support Mother."
Procedural note: In Pennsylvania, trial judges have the option of waiting to write "opinions" explaining their "orders" until after a notice of appeal is filed by a party. Pennsylvania Rule of Appellate Procedure, Rule 1925. Further, the trial judge can also require the appealing party to file a "statement of errors," in advance of the trial judge's obligation to write an opinion. I don't know how many states use this process, but certainly by comparison to the Federal Rules of Civil Procedure, it is a rather unique opportunity for judges to write an opinion, as did the trial judge in the Eori case, that, in essence, expresses views on the merits of the "appeal."
For those gathering together as family for Thanksgiving next week, perhaps this case history provides lessons.
Wednesday, November 18, 2015
Washington State Elder Law Attorney Margaret Dore has shared with us her interesting analysis of "California's Assisted Suicide Law: Whose Choice Will It Be?," published here in JURIST, the on-line platform by University of Pittsburgh Law. She criticizes California's new law as inviting misuse, including elder abuse, observing:
The bill, ABX2-15, has an application process to obtain the lethal dose, which includes a written lethal dose request form with two required witnesses. Once the lethal dose is issued by the pharmacy, there is no oversight over administration. No one, not even a doctor, is required to be present at the death.
ABX2-15 allows one of the two witnesses on the lethal dose request form to be the patient's heir, who will financially benefit from the patient's death. This is an extreme conflict of interest. Indeed, under California's Probate Code, similar conduct (an heir's acting as a witness on a will) can create a presumption that the will was procured by "duress, menace, fraud or undue influence." ABX2-15, which specifically allows the patient's heir to be a witness on the lethal dose request form, does not promote patient choice. It invites duress, menace, fraud and undue influence.
Further, she notes the potential trauma for family members, citing examples from her practice:
Two of my clients, whose fathers signed up for the lethal dose in Washington and Oregon, suffered similar trauma. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized. The father did not take the lethal dose and died a natural death. In the other case, it is not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client's father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." But then took the lethal dose the next night when he was already intoxicated on alcohol. My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
Ms. Dore is a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia.
Wednesday, November 11, 2015
In the October 2015 issue of the Pennsylvania Bar Quarterly, attorney Owen Kelly reports on "The Pennsylvania Supreme Court Elder Law Task Force Report and Recommendations" as a "Blueprint for Justice." His overview provides:
Our Commonwealth is in the midst of a period of unprecedented growth in its elder population and this growth is projected to continue for the foreseeable future. The growing elder population will present profound challenges to the Commonwealth's courts, particularly with respect to guardianships, abuse and neglect, and access to justice. In April 2013, the Pennsylvania Supreme Court established the Elder Law Task Force to address the impact this growing segment of the population will have on the judicial system. In November 2014, the Task Force issued its report which contained a multitude of recommendations on a variety of issues related to elders' interactions with the court system. Since their creation on January 1, 2015, the two entities charged with overseeing implementation of the Task Force's recommendations -- the Office of Elder Justice in the Courts and the Advisory Council on Elder Justice in the Courts -- have been actively implementing many of the recommendations. Task Force recommendations implemented or in progress include: proposed new and revised guardianship forms; education and training initiatives; proposed changes to the Rules of Criminal Procedure; revising bar admission rules to allow retired or voluntarily inactive attorneys to provide pro bono services for elders; a study of a pilot Elder Court; and changes to the statewide electronic case management system to allow for better monitoring of guardianships.
As someone who was a member of the Task Force, I am glad see that concrete steps are underway to implement changes, especially with respect to better accountability for guardianships on a state-wide basis. Much work is ahead.
Tuesday, November 10, 2015
On November 6, 2015 the appellate division of New York's Supreme Court addressed an issue long brewing in some states, whether Continuing Care Retirement Communities (CCRCs) can insist on "private pay" for skilled nursing care despite a resident's "eligibility" for Medicaid under state and federal laws. In Good Shepherd Village at Endwell, Inc. v. Yezzi, the unanimous panel affirmed summary judgment in favor of the CCRC on the payment question.
The decision highlights Congressional DRA action in 2005/6 that amended federal Medicaid law to expressly permit CCRCs to offer contracts that require residents to "spend on their care resources declared for the purposes of admission before applying for medical assistance." The DRA amendment was a response to the industry's lobbying efforts, following a 2004 decision by a Maryland appellate court in Oak Crest Village, Inc. v. Murphy that held such a contractual provision violated the federal Nursing Home Residents' Bill of Rights, viewed as prohibiting nursing homes from conditioning admission on guarantees of private pay.
In the New York case history, the couple apparently signed two separate documents, beginning with a "contract" at the time of their entrance into the CCRC that required them to pay both an entrance fee ($143,850) and "basic monthly fees" of approximately $2,550 to cover the cost of independent living. Any need for skilled nursing care would be assessed "an additional charge." That contract provided that residents could "not transfer assets represented as available" for less than fair market value. When the wife needed skilled care, the couple signed a second document, referred to in the case as an "admission agreement," for treatment in the CCRC's skilled nursing unit. The "admission agreement" reportedly required the Yezzis to "pay for, or arrange to have paid for by Medicaid" all services provided by the CCRC.