Friday, May 18, 2018
Kaiser Health News published a compilation of recent stories about gun safety and one caught my eye: the advantage of doctors discussing gun safety with elder patients. Doctors Should Be Discussing Gun Safety With Aging Patients, Researchers Say.
The reference to the story from the LA TImes, As more older Americans struggle with dementia, what happens to their guns?seemed particularly on point and the KHN story published the opening from the LA Times article
The man had been a patient for decades, retired now from a career in which firearms were a part of the job. He was enjoying his days hunting, or at the shooting range with friends. But episodes of confusion had led to a suspicion of dementia, and the nights were the worst: At sundown, he became disoriented, anxious and a little paranoid, and had started sleeping with his loaded pistol under the pillow. One night, he pointed it at his wife as she returned from the bathroom. It wasn't clear whether he recognized her, but he was certainly confused — and she was terrified. Thankfully, the incident did not end in disaster.
Regardless of your position on the gun control debate, consider these statistics from the LA Times article
Roughly 1 in 3 adults over 65 in the United States is thought to own a gun. An additional 12% live in a household with someone who does.
As seniors turn 70, their odds of developing Alzheimer's disease in a given year jump from less than 1% (among those 65 to 69) to 2.5% (among those 70 to 74), and keep rising from there. By 2050, the number of older Americans with Alzheimer's is expected to reach 13.8 million.
The article discusses driver safety and draws corollaries to gun safety. The article highlights the lack of response to this issue at the state level:
No federal laws prohibit the purchase or possession of firearms by a person with dementia. Only two states, Hawaii and Texas, explicitly mention dementia or similar conditions in their firearms statutes.
In Hawaii, any person under treatment for "organic brain syndromes" is prohibited from owning a gun. Texas law makes individuals diagnosed with "chronic dementia" ineligible for a license to carry a handgun in public. But it does not limit such a person's right to purchase or possess firearms.
One expert quoted in the article describes this as not an issue of taking away someone's guns but instead a decision that focuses on the person's safety.
May 18, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, May 16, 2018
Last Sunday, CBS' 60 Minutes ran an extended feature story on the role of grandparents as primary caregivers for grandchildren, often because of untrustworthy parents with opioid or other addiction problems. The story reported that "stoked by the opioid crisis, 21,000 children -- just in Utah -- live with their grandparents."
The feature also suggested some of the financial consequences for the extended family, as grandparents were exhausting their own retirement savings in order to provide for the younger children. Nonprofit programs, such as Grandfamilies, sometimes are able to provide informal support for the grandparents.
Along the same lines, Pennsylvania's Governor Wolf signed new laws, Senate Bill 844 (Printer's No. 1531), which became Act No. 21, on May 4, 2018. The law recognizes expanded standing for grandparents to seek physical or legal custody for grandchildren, if they can show "clear and convincing evidence" of all of the following:
(I) The individual has assumed or is willing to assume responsibility for the child.
(II) The individual has a sustained, substantial and sincere interest in the welfare of the child.
In determining whether the individual meets the requirements of this subparagh, the court may consider, among other factors, the nature, quality, extent and length of the involvement by the individual in the child's life.
(III) Neither parent has any form of care or control of the child.
Pennsylvania estimates that there are 82,000 grandparents acting as sole caregivers for roughly 89,000 grandchildren. Other related bills still pending in Pennsylvania include support for creation of a "Kinship Caregiver Navigation Program," and a means to appoint a temporary guardian when a parent enters drug or alcohol treatment.
Additional history on the shifts in thinking on grandparent rights can be important. For example see this Pennsylvania law firm's blog post from 2013 on amendments that removed "automatic" standing for grandparents to seek custody.
The Pennsylvania Bar Institute, responding swiftly to the latest changes, is offering a Webinar tomorrow (May 17, 2018) on the new laws.
Monday, May 14, 2018
As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018. The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos. In-person training programs are also under development, on a county-by-county basis.
I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.
Nisa also provided links to the new Maryland Rules on mandatory training for guardians: Md. Rules 10-108, 10.205.1, and 10-304.1. In addition, these rules refer to Guidelines for Court-Appointed Guardians of the Person and Property. Thank you, Nisa!
The state of Washington also is developing a program for "lay/family (non-professional) guardians training."
County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.
Other states have also been active in establishing education and testing for prospective or current guardians. Several states' programs have been developed following allegations of improper appointments or lack of oversight. We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.
A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes described in legislation or court rules as "nonprofessional guardians." Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons. Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members.
The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules. As depicted on the map, some states have adopted CGC certifications as the state standard for approval of "professional" guardians. In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.
The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians.
You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.
Wednesday, May 9, 2018
Check out this new issue brief from the National Adult Protective Services Association (NAPSA) Research to Practice Series. Fraud versus financial abuse and the influence of social relationship, offers this summary
Elder financial exploitation, committed by individuals in positions of trust, and elder fraud, committed by predatory strangers, are two forms of financial victimization that target vulnerable older adults. The study presented in the webinar analyzes differences between fraud and financial exploitation APS victims in terms of their health, functional dependency, cognitive functioning, and social relationships.
In this mixed methods study, fifty-three financial exploitation and fraud cases were sampled from an elder abuse forensic center in California. Data include law enforcement and caseworker investigation reports, victim medical records, perpetrator demographic information, and forensic assessments of victim health and cognitive functioning.
The vast majority of fraud and financial exploitation victims performed poorly on tests of cognitive functioning and financial decision-making administered by a forensic neuropsychologist following the allegations. Based on retrospective record review, there were few significant differences in physical health and cognitive functioning at the time victims' assets were taken, although their social contexts were different. Fraud most often occurred when a vulnerable elder was solicited by a financial predator
in the absence of capable guardians. In other words, most fraud victims in the sample did not have trusted friends or family members assisting with financial decisions and providing care at the time the fraud perpetrators entered the picture. Fraud victims were significantly less likely to have children and also had fewer relatives nearby. In sum, fraud and financial exploitation victims had different family and friend structures that may create different opportunity structures for crime.
Social isolation was not only a potential risk factor for financial victimization, it was also a tactic of undue influence to further manipulate and control the victims. Some fraud victims in the sample developed close friendships and romantic relationships with the financial perpetrators, even in the cases where they communicated only by telephone. While these relationships were constructed to manipulate and deceive the victim, they felt authentic to the older person. Perpetrators often exploited the victim's need for companionship and began limiting and controlling their victims' social interactions to create a sense of powerlessness and emotional dependency.
Tuesday, May 8, 2018
Most commentaries on funding for retirement years point to insufficiency of savings or other resources. But here's a different take, drawing upon a recently published report from the Employee Benefit Research Institute (EBRI) that suggests retirees with significant savings are often exercising restraint in spending, From the St. Louis Post-Dispatch on The Myth of Outliving Your Retirement Savings:
In the EBRI study, those with the most savings — a median of $857,450 shortly after retiring — still had $756,300 two decades later. The decrease amounts to just 11.8 percent of the original sum.
The largest drop in retirement nest eggs, 24.4 percent, was among those with the least savings, or a median of $29,975.
Frugal behavior is consistent with research led by Anna Rappaport for the Society of Actuaries. She and her team found that most people do not plan for retirement or know what they should spend, but they adapt — even when shocked by high dental bills or a roof repair.
What can devastate financially are divorce, caring for a mentally or physically ill adult child who cannot work, and long-term care expenses, according to the actuarial society’s research.
Still, debilitating health care costs are far more rare than people fear, according to the EBRI research. Half of retirees face no nursing home expenses because Medicare covers short recoveries after hospital stays and Medicaid can help when resources run out.
The medical annual out-of-pocket spending for 90 percent of retirees is just $2,000, and the big nursing home costs over $87,000 hit only 10 percent of people living longer than 95, according to the EBRI study.
For the EBRI study itself, see the April 2018 report on Asset Decumulation or Asset Preservation? What Guides Retirement Spending?
Monday, May 7, 2018
A coalition of Wisconsin health care organizations is warning that the state's shortage of long-term care providers continues to grow.
The study, put together by several groups across the state, says 1 in 5 direct caregiver positions in the state is going unfilled. That's up from 1 in 7 positions in 2016.
Starting wages in the profession are so low that many potential workers never apply, according to the report. The median hourly starting wage for personal caregivers is $10.75 an hour, according to the study, while other positions outside health care start at $12 an hour.
The report found Wisconsin's low rate of Medicaid reimbursement is a key factor keeping provider wages low.
Sarah Bass of the Wisconsin Assisted Living Association said with so many unfilled positions, many facilities are cutting back, even though demand for long-term care continues to grow.
"Assisted living providers are closing their doors, or shutting down areas of their assisted living facilities, because they don't have the staff to safely take care of the residents," she said. "They're reducing their admissions."
These problems exist despite some increases in state funding for skilled care and family care workers in the latest budget.
May 7, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, April 23, 2018
You've heard the phrases such as "60 is the new 40." Now we learn there may be some truth to the thought that you feel younger than your chronological age.The Washington Post recently published this article, Cliches about only being as old as you feel are starting to have scientific backing.
The article focuses on research that indicates many folks who are older feel good about themselves and about the negative messages about aging that affect us all. The article references "[o]ne study ... [that] found that as people get older, they consistently say they feel younger — much younger — than their actual age. Another study examining the attitudes of the offspring of centenarians concluded that the centenarians’ children — if they, too, were healthy and long-lived — have a strong sense of purpose and meaning to their lives, compared with the general population. Finally, there is evidence that positive attitudes about aging may reduce the risk of dementia, among the most dreaded consequences of aging." Yet, we start being bombarded with negative messages about aging at a very young age. One expert noted that kids even age 3 or 4 already have absorbed "the age stereotypes of their culture,” which it seems come from "many sources, ranging from stories to social media. Individuals of all ages can benefit from bolstering their positive images of aging.” Another expert quoted in the article explains that “[n]egative views about aging are communicated to us early in life, through media, books and movies, and what our friends and family tell us... [and that such] attitudes are present and pervasive already in childhood, so naturally it’s hard to enact meaningful change to these attitudes....”
Several studies are referenced in the article. The studies bear out the idea that folks who are older feel younger than their chronological ages, but as far as younger people's perceptions, they consider old to be a lower number than those who are old would offer. For example, one researcher offered that "teenagers and young adults equated turning 50 with hitting old age."
And we've all heard the saying about attitude is everything. It turns out those with positive views of aging help with reducing stress and decreasing chances of dementia. One research summarizes her findings: She "evaluated 4,765 older people — average age, 72 — who were free of dementia at the start of the study and followed them for four years. The participants answered a series of questions about their beliefs about aging [and the researchers] found [that] those who expressed more-positive age beliefs at baseline were less likely to develop dementia . . . than those who expressed more-negative age beliefs...."
So remember, the class is half-full and aging is not a bad thing!
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Wednesday, April 11, 2018
The Alzheimer's Association has released their annual facts and figures report. 2018 Alzheimer's Disease Facts & Figures also includes a special report on the benefits (personal and financial) of early diagnosis. Here are some highlights of topics covered in the report:
Brain changes that occur with Alzheimer’s disease …
Revised guidelines for diagnosing Alzheimer’s disease …
Number of Americans with Alzheimer’s dementia nationally … and for each state …
Proportion of women and men with Alzheimer’s and other dementias …
Lifetime risk for developing Alzheimer’s dementia …
Number of deaths due to Alzheimer’s disease nationally … and for each state … and death rates by age …
Number of family caregivers, hours of care provided, and economic value of unpaid care nationally and for each state …
The impact of caregiving on caregivers …
National cost of care for individuals with Alzheimer’s or other dementias, including costs paid by Medicare and Medicaid and costs paid out of pocket …
Medicare payments for people with dementia compared with people without dementia
Benefits of earlier detection of Alzheimer's disease …
Cost savings of diagnosing during the earlier mild cognitive impairment stage rather than the dementia stage …
There is a lot of helpful information and statistics in the report. The chart showing the numbers of those with Alzheimer's in 2018 compared to the projections for 2025 is very useful. (Just fyi, my state is expected to have a 33.3% increase). Consider this from page 21 of the report:
“[B]etween 2018 and 2025 every state across the country is expected to experience an increase of at least 13 percent in the number of people with Alzheimer’s. These projected increases in the number of people with Alzheimer’s are due to projected increases in the population age 65 and older in these states. The West and Southeast are expected to experience the largest percentage increases in people with Alzheimer’s between 2018 and 2025. These increases will have a marked impact on states’ health care systems, as well as the Medicaid program, which covers the costs of long-term care and support for some older residents with dementia.”
Tuesday, March 27, 2018
The Hidden Brain is a great radio program with frequent stories relevant to aging. A recent episode is titled Guys, We Have A Problem: How American Masculinity Creates Lonely Men. Frankly, I think the title doesn't do the episode justice, as although the episode focuses primarily on the potentially disproportionate likelihood of isolation and loneliness for men as they get older, many of the program's most important points strike me as applying equally to anyone who finds his or her life becoming more isolated.
One interview explored the moving personal history of a lawyer, Paul Kugelman, as he went through life, starting with disconnections connected to frequent military-service-connected family relocation, followed by his own divorce and struggles with work/life balance, a temptation to drink, and a a recovery strategy that included completing an Iron-Man Marathon. But running wasn't enough. Over-reliance on a spouse put enormous pressure on the relationship. He had to learn new skills to create new friendships.
The program also explored findings from an early Harvard study of American men, now known as the Harvard Study of Adult Development, a study that has been on-going, with various adjustments based on funding sources, for 8 decades. One question asked over the entire course of the study's history was deceptively simple:
Who would you call in the middle of the night if you were sick or afraid?
It turns out that if men had a solid answer to that question, they were happier with their lives and their marriages. "There were also connections with the men's answers to that question and their physical health. Very strong connections."
The program dug deeper into physical health and emotional connections, suggesting that we should think about how coming into work on a Monday morning. Do you look forward to seeing people you like? That connection is energizing. And calming.
The program explained that studies show that the people who are "happiest in retirement are those who actively work to replace colleagues with friends." "Spending time building and nurturing your friendships might be just as important to your health as eating right and exercising."
Bottom line: Don't miss the warning signs that your social circles are shrinking, regardless of gender.
I was a bit surprised to read an article this month reporting that Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities, are experiencing not just growth in occupancy over the last 12 months, but comprise "the only segment of senior living and long-term care to see increased occupancy in 2018." Lois Bowers, senior editor at McKnight's Senior Living provides the summary of the study:
The stabilized occupancy rate for CCRCs has increased 30 basis points to 91.5% over the past 12 months and has stayed in the low 90s for the past 10 years, according to the company's senior housing research national report for the first half of 2018.
“Rent growth remains strong, with the average advancing 3.2 percent to $3,322 per month in 2018,” the authors wrote about CCRCs, also known as life plan communities.
Independent living is the big draw in these communities, where many operators are reducing the number of skilled nursing beds, according to the report.
For more, read CCRCs Alone in Occupancy Increase This Year, Report Says.
Sunday, March 25, 2018
NAELA Past President Howard Krooks Writes Thoughtfully About Effect of Parkland Shooting on His Family
Seasoned Elder Law attorneys often make the news, but today the sober reason was because I was reading two of Elder Law guru Howard Krooks's Op-Ed pieces for a Florida newspaper, about his son's fortunate escape from the Parkland School shooting and the aftermath for his family and for many, many others, especially those with more tragic outcomes.
Howard, who is a CELA and past president of the National Academy of Elder Law Attorneys (NAELA), writes in part:
Now it’s Wednesday morning. We decide Noah will go to school today. Zachary Cruz [the brother of the school shooter] is being held on $500,000 bond. He will undergo a psychological evaluation. His home in Lake Worth will be searched for weapons. And Gov. Rick Scott has requested that an armed law enforcement officer “secure every point of entry” at the school.
Good, I think. I feel safe now sending my son to school. Not.
My wife came home this morning from dropping off Noah, sobbing. “Why are you crying?” I ask. “Because I just dropped our son off at school, and I don’t know if he will be safe. Will he come home this afternoon? Will we ever see him again? And what if we beef up security at MSD so that nobody unauthorized can enter the campus — but our other son’s middle school is right next door, so the person can just go there and wreak havoc on the middle school campus, instead?”
She is sitting on our bed, head in her hands, filled with fear. Post-Traumatic Stress Disorder is real.
We need to do better. The legislation Gov. Scott signed on March 9 was a start. But it was just the beginning of the sweeping structural change needed in this country to send our children safely to school each day.
We in Parkland want to remain positive. We want to move forward. And we want to honor those who lost their lives or were injured on that terrible day. But most of all, we want to use this tragedy to bring about positive change. . . .
Thank you, Howard. For the full Opinion piece, see A Parkland Father's Plea for Help, and his earlier article, As School Shooter Stalks, Texts Between A Father and Son, both in the Sun Sentinel.
Friday, March 23, 2018
On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations, calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships.
As set forth in the press release, NCD's findings include:
- Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
- Capacity determinations often lack sufficient scientific or evidentiary basis.
- Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
- People with disabilities are often denied due process rights in guardianship proceedings.
- Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
- Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
- There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.
NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.
Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.
My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.
March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, March 5, 2018
News Feature Focuses on Court-Appointed Guardian in Pennsylvania, Raising Important Systemic Questions
From Nicole Brambila, an investigative journalist for the Reading [Pennsylvania] Eagle, comes an article examining the history of a specific individual appointed by courts to serve as a guardian in multiple cases, in different counties in Pennsylvania. The article raises important questions about court oversight, including but not limited to whether there should be mandatory criminal background checks for those serving as court-appointed fiduciaries:
If [an elderly couple in Montgomery County, Pennsylvania] were astonished to learn the court-appointed guardian [for the 79-year-old husband] had not been paying the mortgage and other bills, their surprise would pale in comparison to the revelations yet to come. Unbeknownst to them, Byars [the guardian in question] had been convicted multiple times of financial theft.
Her most recent arrest came in 2005. She pleaded guilty to felony fraud and was sentenced to 37 months in a federal prison after cashing $20,000 in blank checks [she] found while rummaging through trash cans at a Virginia post office.
The article points to another case in Philadelphia Orphans Court, where an attorney representing family members of a different person alleged to be in need of a guardian, looked into the background of Byars, and discovered records detailing her history. The attorney was successful in having her removed as the court-appointed guardian in that case. The Reading Eagle reporter writes:
For six months she continued serving as guardian to 52 incapacitated Philadelphians. No other Philadelphia judge removed her until after the Reading Eagle made dozens of inquiries in January with the court, Adult Protective Services, the Pennsylvania Department of Aging and state lawmakers about her appointments. . . .
Philadelphia Orphans Court works with more than a dozen professional guardians. Ten of these, including Byars, carry some of the highest caseloads: 22, 48, 54 and more. But none more than Byars, who was appointed in Philadelphia alone 75 times from 2014 through 2016, according to court dockets.
For more, read Unguarded: Montgomery County Couple's Trust Betrayed, published March 4, 2018 in the Reading Eagle [paywall protected, although there is a $1 fee for single day access].
March 5, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Friday, February 23, 2018
The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note. From the opening paragraphs:
Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.
The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.
Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.
This article is definitely worth a careful read.
February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, February 1, 2018
Indiana is announcing a first in the nation registry of guardianship so financial institutions and others can quickly verify whether an individual is under a guardianship. An article, Indiana breaking ground with online guardianship registry explains
The benefits of the registry (public.courts.in.gov/GRP/) are twofold, DeBoer said. It both helps the courts monitor the cases and grants limited public access to further help protect those in the care of guardians.
The public online registry provides the names of the protected person and their appointed guardian, the protected person's year of birth, whether the case is active or expired, the date the letters of guardianship were issued, the county issuing the guardianship and the case number, according to the state's guardianship website.
Participation in the registry is voluntary and a bit over half of the counties are doing so. The registry was several years in the making and now, according to the article
The public portion of the registry offers access to less information, but enough to be helpful to banks, hospitals, police and others, said Kathryn Dolan, chief public information officer with the Indiana Supreme Court. ...
Public access to the registry is helpful in all sorts of situations, such as police coming across someone wandering the streets who appears to be in need, Schneider said. Police could search a name and see if there is someone appointed to handle the person's needs.
The registry also helps the courts keep track of statistics related to their guardianship cases....
February 1, 2018 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, January 18, 2018
The Wall Street Journal has an update article this week on the financial health of the long-term care insurance industry, detailing recent rate increases and reminding us that even with contraction of this specialized market for sellers of new policies, there are still more than 7 million policies affected by the inadequate pricing structure issues.
Steep rate increases that many policyholders never saw coming are confronting them with an awful choice: Come up with the money to pay more—or walk away from their coverage.
“Never in our wildest imagination did we consider that the company would double the premium,” says Sally Wylie, 67, a retired learning specialist who lives on Vinalhaven Island, Maine.
In the past two years, CNA FinancialCorp. has increased the annual long-term-care insurance bill for Ms. Wylie and her husband by more than 90% to $4,831. They bought the policies in 2008, which promise future benefits of as much as $268,275 per person. The Wylies are bracing for more increases.
Even with the rate increases, companies are looking at losses in anticipation of claims as existing policy holders are now aging into a claims mode. General Electronic Company, has attempted to reassure shareholders about the impact of its LTCI business on profits.
Only a dozen or so insurers still sell the coverage, down from more than 100. General ElectricCo. said Tuesday it would take a pretax charge of $9.5 billion, mostly because of long-term-care policies sold in the 1980s and 1990s. Since 2007, other companies have taken $10.5 billion in pretax earnings charges to boost reserves for future claims, according to analysts at investment bank Evercore ISI. . . .
Almost every insurer in the business badly underestimated how many claims would be filed and how long people would draw payments before dying. People are living and keeping their policies much longer than expected. After the financial crisis hit, nine years of ultralow interest rates also left insurers with far lower investment returns than they needed to pay those claims.
Long-term-care insurers barreled into the business even though their actuaries didn’t have a long record of data to draw on when setting prices. Looking back now, some executives say marketing policies on a “level premium” basis also left insurers with a disastrously slim margin of error.
“We never should have done it, and the regulators never should have allowed it,” Thomas McInerney, president and chief executive ofGenworth FinancialInc. since 2013, says of the pricing strategy. “That’s crazy.”
For more of this detailed article, see Millions Brought Insurance to Cover Retirement Health Costs. Now They Face an Awful Choice. Our thanks to University of Illinois Law Professor Dick Kaplan and New York attorney Karen Miller for bringing this article to our attention.
Thursday, December 14, 2017
In a new article published by Xu Han (Florida Atlantic), Niam Yaraghi (University of Connecticut) and Ram Gopal (University of Connecticut), their analysis of data used over a 4 year period for nursing home ratings in CMS' "Nursing Home Compare" system reveals key concerns. From the abstract:
We argue that the rating system is prone to inflation in self-reported measures, which leads to biased and misleading ratings. We use the CMS rating data over 2009–2013 and the corresponding financial data reported by Office of Statewide Health Planning and Development and patients’ complaints data reported by California Department of Public Health for 1219 nursing homes in California to empirically examine the key factors affecting the star rating of a nursing home.
We find a significant association between the changes in a nursing home's star rating and its profits, which points to a financial incentive for nursing homes to improve the ratings. We then demonstrate that this association does not always lead to legitimate efforts to improve service quality, but instead can induce inflation in self-reporting in the rating procedure. A prediction model is then developed to evaluate the extensiveness of inflation among the suspect population based on which 6% to 8.5% of the nursing homes are identified as likely inflators. We also summarize the key characteristics of likely inflators, which can be useful for future audit.
For more, see the full article, Winning at All Costs: Analysis of Inflation in Nursing Homes' Rating System, published November 20, 2017 in the journal Production and Operations Management.
Wednesday, December 13, 2017
Are games and food supplements that promise to stave off the onset of dementia the modern day version of "snake oil?" I promised to write more about the Aging Brain Conference at Arizona State University's Sandra Day O'Connor College of Law on December 8, 2017. Speaker Dr. Cynthia Stonnington, Mayo Clinic, offered an important look at ways in which law, ethics, medicine, and commerce can collide with her survey of a host of approaches receiving "popular" press treatment.
She examined self-described "brain-training" programs, miracle diets, supplements and targeted exercise programs, noting that most studies that purport to demonstrate positive results from these items have serious flaws. Thus, at best, programs that claim to provide "protection" against dementia are usually promising more than has been proven. Dr. Stonnington, along with the morning keynote speaker, former U.S. Surgeon General Richard Carmona, reminded us that
- maintaining social engagement,
- engaging in lifelong learning,
- getting regular exercise of any type,
- having good blood pressure control,
- getting adequate sleep, and
- focusing on good nutrition (including eating plans such as the Mediterranean, DASH or MIND diets)
are far more important than any single, magic game or exercise.
One of the most lively discussions of the day came near the end, in response to presentations by Dr. Patrica Mayer of Banner Health in Phoenix, Amy McLean of Hospice of the Valley. and Life Sciences Professor Jason Robert (ASU) speaking for himself and Susan Fitzpatrick (James S. McDonnell Foundation), about end-of-life considerations for persons with dementia or other serious illnesses. What would be the most likely response of a physician or emergency personnel confronted with a "do not resuscitate" tattoo on the chest of an emergency patient? Dr. Mayer stressed that she is seeking reliable methods of communicating end-of-life wishes, and for her that means a preference for a written, Medical Power of Attorney. She wants that "live" interaction whenever possible, in order to fully explore the options for care for individuals unable to communicate for themselves. But she also noted a frequent frustration when she contacts designated POAs about the need to make tough decisions, only to learn they were completely unaware before that moment of having been named as the designated agent.
I was part of a panel of court-connected speakers, including Arizona Superior Court Judge Jay Polk (Maricopa County), neuropsychologist (and frequent expert witness) Elizabeth Leonard, and experienced Phoenix attorney Charles Arnold. I was interested to hear about -- and will pursue more information on -- the psychologists' use of evaluative tools for clients that use scenarios that would appear to test not just for loss of memory, but impaired judgment. I was speaking on the unfortunate need for judicial inquiries into "improvident transactions" by persons with problematic cognition and I used litigation approaches from other locations -- Ireland (common law) and Maine (statutory) -- as examples. The Arizona legal experts reminded me to take a closer look at Arizona's financial exploitation laws.
For more from this conference, see Learning to Say the Word "Die" -- about a pilot program developed by Dr. Mayer while she was an advanced bioethics fellow at the Cleveland Clinic. I also recommend Dr. Mayer's article on CPR & Hospice: Incompatible Goals, Irreconcilable Differences,
December 13, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Games, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, Science, Statistics | Permalink | Comments (0)
Wednesday, December 6, 2017
On December 8, 2017, I'm excited to be participating in a conference on The Aging Brain: Legal, Policy & Ethical Perspectives, in Phoenix, Arizona. This program is a follow-up to an interdisciplinary workshop hosted at Arizona State University's Sandra Day O'Connor School of Law in the fall of 2016. This year's presentations will take place at the the United States Courthouse in Phoenix.
The planned schedule is jam-packed with speakers I'm looking forward to hearing, including:
Welcome: Betsy Grey, Sandra Day O’Connor College of Law, ASU
Introduction: Dean Douglas Sylvester, Sandra Day O’Connor College of Law, ASU
Keynote Speaker:Richard H. Carmona, M.D., M.P.H., FACS, 17th Surgeon General of the United States, Chief of Health Innovations, Canyon Ranch, Distinguished Professor, University of Arizona
Scientific Developments in Aging and Dementia: Pre-Symptomatic Screening for Neurodegenerative Diseases
Panel Chair: Hon. Roslyn O. Silver, U.S. District Court for the District of Arizona
- Dr. Richard Caselli, Mayo Clinic
- Dr. Jessica Langbaum, Banner Alzheimer's Institute
- Dr. Cynthia M. Stonnington, Mayo C;inic
- Jalayne J. Arias, UCSF Neurology, Memory and Aging Center
- Henry T. Greely, Stanford Law School
Aging at Home
Panel Chair: Larry J. Cohen, The Cohen Law Firm
- David Coon, College of Nursing & Health Solutions, ASU
- Kent Dicks, Life365, Inc.
Panel Chair: Charles L. Arnold, Frazer Ryan Goldberg & Arnold, LLP
- Hon. Jay M. Polk, Probate Dep’t. Associate Presiding Judge, Superior Court of Arizona for Maricopa County
- Katherine Pearson, Dickinson School of Law, Pennsylvania State University
- Dr. Elizabeth Leonard, Neurocognitive Associates
- Betsy Grey, Sandra Day O’Connor College of Law, ASU
End of Life
Panel Chair: Dr. Mitzi Krockover, Health Futures Council at ASU
- Jason Robert, Lincoln Center for Applied Ethics, ASU
- Amy McLean, Hospice of the Valley
- Dr. Patricia A. Mayer, Banner Baywood & Banner Health Hospitals
Dr. Susan Fitzpatrick, President, James S. McDonnell Foundation
Introduction by Jason Robert, Lincoln Center for Applied Ethics, ASU
December 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0)