Sunday, June 1, 2014
As Becky Morgan and I reported earlier, the Law & Society Annual Meeting held in Minneapolis from May 29 through June 1, attracted terrifically interesting speakers, both from within and outside the United States. During the Critical Research Network sessions (CRN) on Aging, Law & Society, I was particularly struck by listening to a trio of speakers from Israel, including Israel (Issi) Doron from the University of Haifa, Michael (Mickey) Schindler from Bar-Ilan University, and Benny Spanier, from Haifa University.
Issi provided a historical perspective on aging as an international human rights issue, tracking the development of action plans under the auspices of the United Nations from 1982 in Vienna to 2002 in Madrid. The 2002 outcome document, the Madrid International Plan of Action on Ageing (MIPAA), expresses the commitment of 160 participating governments, including the United States, to integrate rights and needs of older persons into national, as well as international, economic and social development policies. However, as Issi pointed out, this is a "soft" document, non-binding in nature.
Thus, the next important step is a Convention or Treaty on aging human rights, a subject of on-going discussions in international circles. Issi saw a hopeful sign in May 2014 appointment of a new Independent Expert on Human Rights of Older Persons, Rosa Kornfeld-Matte, by the U.N. Human Rights Council. Kornfeld-Matte served as the National Director of the Chilean National Service of Ageing and has a long career as an academic, working for more than 20 years at the Pontificia Unversidad Catolica de Chile, where she founded a program on older people. The role for Ms. Kornfeld-Matte, who has a 3 year appointment, is that of fact-finder, to provide an independent assessment of the critical issues for aging human rights as the basis for international law.
Micky's presentation focused on the effect of Israel's use -- or relative nonuse -- of legislation adopted in 1966, the "Safety of Protected Persons Law." He pointed to the potential role of social workers in safeguarding the rights of older adults, and suggesting that the flexibility available to the court to fashion court-enforced solutions to care and safety issues might be a better option than what is available under the more-often used guardianship law.
Benny examined some 226 decisions involving claims by older persons before the European Court of Human Rights, drawn from 2000 to 2010, concluding that although the European Convention on Human Rights does not specifically recognize older adults as having protected right, the cases examined demonstrate that individuals making age-based claims for protection are seeking -- and in some instances finding -- relief before this court. Benny's analysis of these cases, in a paper co-authored with Issi and Faina Milman-Sivan, also from the University of Haifa, was published in late 2013 in the Journal of Cross Cultural Gerontology.
Following the first day of presentations and workshops, several of the speakers met for dinner at a local Minneapolis restaurant (Spoonriver, overlooking the Mississippi River -- great spot!), and a number of us were discussing a growing problem for international research. Many of the key journals and periodical publications for aging research are "owned" by publishers who prohibit authors from placing final versions of their papers on open-access research platforms such as SSRN. The prices charged for individual researchers' access to electronic copies of an article are often prohibitive for academic researchers, who often need and wish to cite to multiple sources. We discussed options, such as whether authors should seek to negotiate for unrestricted public access after an initial period of fee-paid access. Others' thoughts on this issue?
Saturday, May 24, 2014
Monday, April 14, 2014
New Report Finds That Spouses Who Are Caregivers Are More Likely Than Other Caregivers to Perform Demanding Medical/Nursing Tasks
The United Hospital Fund and AARP Public Policy Institute has issued a report today showing that spouses who are caregivers not only perform many of the tasks that health care professionals do—a range of medical/nursing tasks including medication management, wound care, using meters and monitors, and more—but they are significantly more likely to do so than other family caregivers, who are mostly adult children. Nearly two-thirds of spouses who are family caregivers performed such tasks (65 percent), compared to 42 percent of nonspousal caregivers.
Saturday, April 12, 2014
I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons.
As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.
Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners. In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.
Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation. Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:
- In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife. In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency. (There were strong dissents to the majority's ruling,). The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters. In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid. The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
- Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
- The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders.
- In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf). Each bill passed in their respective houses. (This single sentence truncates several years of history about the negotiations, all set against the background of need for a "Vine" fix.) Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
- Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies, other legislative proposals emerged. These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers.
In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months. In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix. There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills. Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.
All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity.
At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor. Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight. By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act). Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.
There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards. The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.
Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.
Friday, April 11, 2014
It is Friday and time for a catch-up on recent law review articles. I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world. Here are highlights from recent comments and articles (minus those pesky footnotes):
"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):
"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility."
"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013):
"The costs of long term care are staggering and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."
"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):
"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support. A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."
In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining. Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman." She proposes:
"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."
Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.
Wednesday, April 9, 2014
For the 11th consecutive year, Genworth has released its national survey results for long-term care costs, including statistics for nursing home care, assisted living facility care, adult day health care, home health aide services, and homemaker services. The survey draws upon information from more than 14,800 providers in 440 regions nationwide.
Genworth's 2014 information is offered in several formats, including:
- Key Findings
- Full Report
- State-by-State Statistics (with an interactive map, including search-by-region function)
In addition, and not surprising given that Genworth is an insurance company, the website offers planning guidelines, explaining the role for long-term care insurance.
Thursday, April 3, 2014
That's a frequent paper topic proposal for students in my Elder Law course, and one that usually triggers a conversation about the potential for "ageism." I remind students it will be important to provide evidence in support of their proposals, and not simply recount anecdotes about bad older drivers.
But, in truth, there is plenty of data to identify risks associated with older driving, as suggested by Elder Law Attorney Robert Fleming on his great Blog, citing statistics from the Center for Disease Control about risks for "fatal" accidents over age 75. See "Driving, Aging and Dealing with Family Dynamics."
ElderLawGuy Jeff Marshall takes a very personal look at his own driving future on his Blog, and uses that moment of self reflection to also examine strategies for encouraging older drivers to give up the keys. Read "What to Do When Dad Shouldn't Be Driving."
This is another area of "social policy" where the laws are not uniform on how to intervene when the older driver refuses to stop driving or to make other appropriate adjustments in when and where to drive. Here is a link from the insurance industry's Claims Journal to a recent "State by State Look at Driving Rules for Older Drivers."
And, for a somewhat more theoretical approach to the topic, from University of Miami Law Professor Bruce Winick, the always thoughtful guru of the therapeutic jurisprudence movement, see "Aging, Driving and Public Health: A Therapeutic Jurisprudence Approach." Professor Winick proposes creation of community-based "safe driving centers," as a means of encouraging impaired drivers "voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions."
And of course, we have Professor Becky Morgan's preferred solution, the Jetsons' car that drives (and parks) itself. Read "New Study on Autonomous Cars."
Wednesday, April 2, 2014
Via the Alzheimer's Association:
We have known that women are the epicenter of Alzheimer's disease - making up the majority of both people living with the disease and caregivers. Not only are 3.2 million women living with Alzheimer's, women are also at the epicenter of caregiving for someone with the disease. The Alzheimer's Association's new 2014 Alzheimer's Disease Facts and Figures report shows women have a 1 in 6 chance of developing Alzheimer's, while men have a 1 in 11 chance. As real a concern as breast cancer is to women's health, women in their 60s are about twice as likely to develop Alzheimer's over the rest of their lives as they are to develop breast cancer.
A new Alzheimer's Association women's initiative has launched in conjunction with the Facts and Figures report. Realizing the impact Alzheimer's has on women - and the impact women can have when they work together - we ask women to share why their brain matters and how they can use it to end Alzheimer's at alz.org/mybrain.
University of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014.
He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S. As several recent studies demonstrate, such as those cited on the Elder Law Prof Blog here, here and here, many people are not adequately prepared in terms of finances for retirement.
In responding to this risk, Professor Foreman writes thoughtfully, proposing systemic alternatives, including expansion of Social Security and SSI for "the oldest old." Professor Foreman suggests 90 years of age as the starting point for that category. In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages.
He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:
"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.
While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."
Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this. The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble.
Wednesday, March 19, 2014
Every 67 seconds someone in the United States develops Alzheimer's disease. More than 5 million Americans are living with the disease. Learn the facts. Help wipe out Alzheimer's disease.
Saturday, January 18, 2014
New report from SSA's Office of Retirement and Disability Policy addresses SS, SSI participation rates by African Americans
African Americans: Description of Social Security and Supplemental Security Income Participation and Benefit Levels Using the American Community Survey
Patricia P. Martin and John L. Murphy
Research and Statistics Note No. 2014-01 (released January 2014)
Intro/summary: African Americans encounter significant economic disadvantages, making them a critical focus for social insurance programs. Examining how the African American population uses Old-Age, Survivors, and Disability Insurance (OASDI, or Social Security) benefits and Supplemental Security Income (SSI) payments clarifies the role these programs play in supporting at-risk populations.
Earlier research has explored various facets of the relationship between Social Security and African Americans. For instance, many studies investigate African Americans' low retirement benefit receipt rates relative to whites (Abbott 1977, 1980; Thompson 1975; Huntley 1979; Parsons 1980; Gibson 1987, 1991, 1994; Farley 1988; Hayward, Friedman, and Chen 1996; O'Rand 1996; Gendell and Siegel 1996; Choi 1997; Hendley and Bilimoria 1999; Gustman and Steinmeier 2004; Bridges and Choudhury 2007, 2009; Favreault 2010). Others examine the prominent role of children's benefits for African Americans (Newcomb 2003/2004; Tamborini, Cupito, and Shoffner 2011). This analysis contributes to that body of research by using a relatively new, publicly available, and comprehensive data source, the American Community Survey (ACS), to document the demographic and economic characteristics of African American OASDI beneficiaries and SSI recipients. It is designed to lay the groundwork for future detailed analyses of how African Americans interact with Social Security and related programs.
In this note, we first discuss the strengths of the ACS and the methodology of this analysis. Next, we present the demographic and economic characteristics of the African American population in the 2009 ACS. Then, we present ACS data on OASDI and SSI participation and benefit levels, comparing African American participants with overall participants in three age distributions: the full age range for which benefit statistics are available in the ACS (15 or older), working age (18–61), and retirement age (62 or older).
Wednesday, January 15, 2014
The Journals of Gerontology (Psychological Sciences and Social Sciences - Series B) for January 2014 arrived on my desk this week. It is a special issue on widowhood and bereavement. An opening editorial by Sociology Professor Gary R. Lee (Bowling Green State University) provides an enticing introduction to "Current Research on Widowhood: Devastation and Human Resilience." He begins:
"As of 2010, there were more than 14 million widowed persons in the U.S. population -- nearly 3 million men and well more than 11 million women (U.S. Bureau of Census, 2012 Table 57). About 13% of men and about 40% of women aged 65 and older, and 57% of women aged 75 and older, are widows. This is, of course, just a single snapshot in time; nearly half of the population necessarily experience widowhood during their lifetimes. The only ways to of avoiding it are to never marry, to divorce and never remarry, or to predecease your spouse....
Over the years, I have noted with interest how many articles on widowhood begin with a citation to Holmes and Rahe (1967) to the effect that widowhood is perhaps the most distressing and difficult experience of people's lives.... But some close scrutiny and some nuanced qualifications may be needed."
After outlining the array of articles in the special issue, Lee concludes:
"We know much more about the consequences of widowhood now than we did when Holmes and Rahe (1967) made their of-cited observations about its devastating effects. It does more than just make people sad; it changes their lives in fundamental ways. But the real story here may lie in the search for the ways in which widows and widowers manage to cope with the loss of their spouses and adjust to the new realities they must face."
The table of contents for the issue is available here.
Friday, January 10, 2014
The earliest signs of dementia are often subtle. It can be tempting and easy to brush them off as merely the signs of fatigue or being overwhelmed. Ironically, at the other end of the spectrum, advanced dementia, it may also be easy to jump to conclusions, believing one diagnosis fits all forms of dementia. The modern assumption is probably most often Alzheimer's, while in earlier decades the label might have been simply "senility."
I often ask a medical or gerontology professional with expertise in the various forms of dementia, including Lewy-Body Disease, Frontotemporal Dementia (FTD), Parkinson's related dementia, vascular dementia, as well as Alzheimer's, to speak to my elder law classes. The lectures are fascinating (okay, also a little frightening). But often, near the near the end of a class discussion, a student will ask, "if there is no cure for dementia, does diagnosis of the source really matter?"
A family's search for answers suggests there are may be very good reasons to pursue a definitive diagnosis, even if the ultimate answer is possible only after the death of a loved one impacted by disease. The Ruhrig Family in central Pennsylvania was perplexed by the symptoms and rapid progress of confusion for the patriarch of their family. Sixty-six year old Weston Ruhrig passed away less than a year after the family first began seeing signs of confusion:
"The 6-2, 210-pounder was up by 7 a.m. daily ... seemed always on the move. In June , he conducted a charity auction for United Cerebral Palsy of Central Pennsylvania, just as he had since 1987. He seemed normal.
But his family began noticing odd behavior. Ruhrig became withdrawn. He continually locked doors, sometimes locking out his wife after she had gone to the yard or garage during daylight. Ruhrig was known for harping on people to turn off lights to save electricity. Now he switched on lights for no reason and left the room.
By September , his family had persuaded him to see his family doctor. The doctor found no medical problems but referred him to a neurologist. Ruhrig felt nothing was wrong. In November, the neurologist gave Ruhrig cognitive tests. Ruhrig named the president and recalled facts including his wife’s birth date. But he couldn’t correctly state her age or calculate it. Still, he joked during the visit."
As carefully detailed by Patriot News writer David Wenner, eventually doctors suggested the problem was Alzheimer's. But the family, contrasting their father's symptoms with those of others they knew with more traditional presentations of Alzheimer's related dementia, persisted in seeking a more precise diagnosis. An MRI was viewed as normal. Another test was a spinal tap. Unfortunately, Mr. Ruhrig died suddenly in December 2013, after a fall that led to a rapid decline.
The diagnosis occurred after his death, based on the results of the spinal fluid analysis: Creutzfeldt-Jakob Disease, a very rare variation of the family of diseases associated with "Mad Cow" and "chronic wasting" in deer, but a form that is not considered to be caused by eating or handling contaminated meat. Deterioration associated with the condition is rapid, usually leading to death within a year, and the cause of the disease is currently unknown, and there are no cures.
But the courage of the family in pursuing and talking about the diagnosis could help others, as better understanding of the various forms and causes of dementia should help the larger community of physicians, epidemiologists and other experts chart the frontiers of dementia. Heredity, life-style, diet, viruses, environmental impacts -- with the help of families, all of these factors and others might better be understood in the search for causes and solutions for the different forms of dementia.
For more, read "Hampton Township Man Dies of Mysterious Disease Sometimes Associated with Mad Cow and Chronic Wasting." Thanks to my colleague, Professor Laurel Terry, for pointing me to this interesting local article.
Tuesday, December 31, 2013
The Consumer Financial Protection Bureau (CFPB) has issued preliminary results on its evaluation of "pre-dispute arbitration provisions," used in many contracts for consumer financial service products, such as credit cards, checking accounts or pay-day loans. Congress commanded the study as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
Consumers probably end up viewing these clauses as triggering "mandatory" arbitration, in that consumers typically "consent" by signing agreements without any real understanding of the implications. The report summarizes both pro and con arguments on the use of pre-dispute arbitration provisions.
The study makes strong use of academic research, including recent work by Peter Rutledge (University of Georgia Law) and Christopher Drahozal (Kansas Law), Jean Sternlight (UNLV Law), and my own colleague and friend, Nancy Welsh (Penn State Law).
Much of the CFPB report focuses on what it calls the "front end" of arbitration issues, identifying a host of arbitration-related factors addressed in corporate contracts, such as opt-out rights, arbitrator selection, limits on recoverable damages, time limits for claims, and allocation of costs.
Reading between the lines of the report's preliminary findings, it seems to me to support the view that companies use arbitration as a procedural barrier to consumer challenges, including class actions. At the same time, statistics cited in the report suggest that companies may dispense with arbitration when pursuing collection from defaulting consumers, instead filing suits in small claims courts (the CFPB will address federal and other state court claims in the future).
This seems consistent with what I observed during my 10+ years with Penn State Law's Elder Protection Clinic, where we frequently represented older clients on debt claims. Many of these claims were "old" debts, where our clients had been making minimum payments for years, but were no longer able to keep up with the payments after retirement, particularly if also confronted with new debt from medical crises. I don't recall any of the collection cases being initiated by arbitration. By filing in court, the companies seemed to hope for a low-cost route to default judgments.
The New York Times cites the CFPB study in a recent editorial, calling for a change in laws to permit consumers an effective legal tool when needed to challenge certain corporate practices, pointing out that:
"In disputes over financial products — involving, say, excessive fees, inflated loan balances, faulty credit reporting, or fraud and discrimination — the damages at stake may be significant for an individual but not enough to warrant the cost of a legal challenge unless grouped in a class action. Forced arbitration also fosters abuse, since there is no check on wrongdoing that takes small amounts of money from potentially millions of customers."
The CFPB notes that its December 2013 findings will be followed by a more complete report, expected in 2014.
Sunday, December 29, 2013
Washington Post reporters Peter Whoriskey and Dan Keating use more than ten years of data from California to provide a detailed portrait of hospice, with national implications, concluding that providers are pursuing "healthier" patients to increase their margin. While acknowledging the importance of Medicare-supported hospice for individuals legitimately diagnosed with less than six months to live, the Washington Post article uses survival rates to suggest manipulation of the diagnosis for financial gain:
"[T]he survival rates at AseraCare are emblematic of a problem facing Medicare, which has created a financial incentive for hospice companies to find patients well before death. Medicare pays a hospice about $150 a day per patient for routine care, regardless of whether the company sends a nurse or any other worker out on that day. That means healthier patients, who generally need less help and live longer, yield more profits.
The trend toward longer stays on hospice care may be costing Medicare billions of dollars a year. In 2011, nearly 60 percent of Medicare’s hospice expenditure of $13.8 billion went toward patients who stay on hospice care longer than six months, MedPAC, the Medicare watchdog group created by Congress, has reported."
For the full Washington Post story, itemizing factors contributing to misuse of hospice, see "Hospice Firms Drain Millions from Medicare."
Wednesday, December 18, 2013
A study released in December by the Stanford Center on Longevity addresses one of my frequent concerns. Reports on elder abuse, particularly those on financial abuse and exploitation, routinely include a statement to the effect that "X number of financial fraud cases were examined during the year" but that that more time/money/energy should be devoted to addressing the problem "because X plus Y number of cases exist" but are unreported. There is rarely any explanation for the prediction. While I accept that there is likely to be underreporting, don't we need better measurement tools than intuition?
In "The Scope of the Problem: An Overview of Fraud Prevelance Measurement," Stanford researchers address exactly this issue. "'Without accurate and reliable estimates of fraud,' wrote Martha Deevy, director of the Financial Security Division at the Stanford Center on Longevity, 'it is difficult to understand what works or does not work to protect victims from harm.'" The problem may be not just underreporting, but "underadmitting," especially for victims of elder abuse.
The Stanford report illustrates how analysis of recent sources and methodology can explain variations in predictions, thus also helping to design better tools for the future, including better surveys. For example, they point to the 2011 study of elder abuse in New York State by Lachs & Berman, "notable as a comprehensive endeavor that used multiple sources of data and collaboration among community, governmental, and academic partners to get a sense of the 'big picture' problem."
Thanks to my colleague, Laurel Terry, for sharing this report. Laurel and Howard are the justifiably proud parents of a Stanford sophomore.
Thursday, December 12, 2013
From the University of Michigan Retirement Research Center, a paper on "Older Adult Debt and Financial Frailty" by Annamaria Lusardi (George Washington Univ. of Business) and Olivia Mitchell (Wharton, Univ. of Penn.). The authors compare data from three different time periods to analyze older persons' debt, debt management practices and corresponding potential for financial insecurity. Key findings include:
- Older Americans now on the verge of retirement are more likely to have substantial debt than in the past. "Median debt for those age 56-61 has more than quadrupled, from about $6,200 in 1992 to $28,300 in 2008 (in 2012 dollars)."
- Housing purchased with small down payments and subject to large mortgages are key reasons for higher debt for Boomer retirees.
- Income, level of education, marriage status, race, number of children, health, were also factors identified as affecting risk of financial insecurity after retirement.
One sentence that particularly stood out: "Baby Boomers are more likely to have engaged in expensive borrowing practices."
Wednesday, October 30, 2013
At the LeadingAge annual meeting in Dallas, earlier this week, I attended a round table session hosted by representatives of the Elder Justice Working Group (EJWG), a component of the Elder Justice Coordinating Council (EJCC). The two presenters sought response from the audience, which included individuals from CCRCs, nursing homes, senior housing authorities and other providers of senior living or senior care, to the EJCC's Principles for Action (developed from 9 proposals of the EJWG) aimed at improving national awareness and response to elder abuse, neglect and exploitation.
Here are the first 3 of 9 Principles:
"1. Support the investigations and prosecution of elder abuse, neglect and financial exploitation cases,
2. Support and protect elder victims by improving identification of elder abuse and enhancing response and outreach to victims.
3. Develop a national Adult Protective Services system based upon standardized data collection and a core set of service provision standards and best practices."
For addtional information on recommended federal action, including the other 6 principles, see details reported at the most recent, September meeting of the EJCC.
Our LeadingAge roundtable session focused on practical concerns, including the frustrations felt by some in the room in reporting suspected abuse at a local level, but seeing no response.
I was struck by the very diverse makeup of the individuals choosing to attend a session on elder abuse, both in terms of race and geography, drawing from Maine to Hawaii -- and on to Guam, and thus strongly supporting the EJCC's concerns about nationalized data collection and the need for standardized reporting.
Tuesday, October 22, 2013
With a hat tip to Professor Laurel Terry for sharing this NPR-linked post from Robert Krulwich, check out stats on how American men and woman compare to those in other developed countries in terms of "surviving" to old age. Here's an excerpt, commenting on the trend:
"In 2011, the National Institutes of Health issued a report that tried to make sense of it all. Right away, they found our weak spot. 'U.S. women have relatively high mortality rates at the younger older ages,' they said, which means when women hit their 55th birthdays, for the next almost 20 years, roughly 55 to 75, they will die more often than women in comparable countries. Americans get more lung disease, more heart disease, more diabetes. If Americans reach 75, they get competitive again, but that early old age is where we lose ground. American men showed pretty much the same weakness at roughly the same times.
The authors declared themselves puzzled. 'The relatively poor performance of the United States," they wrote, is "perhaps all the more surprising in light of the fact that the United States spends far more on health care than any other nation in the world, both absolutely and as a percentage of gross national product.'
Tuesday, October 1, 2013
Sweden is the best place in the world to be old and Afghanistan the worst, according to a UN-backed global study. The Global AgeWatch Index examined the quality of life of the elderly in 91 countries. It warns that many countries do not have adequate support in place for their ageing populations. By 2050, older people will outnumber children under 15 for the first time, with most of the elderly in developing countries, it said. The Global AgeWatch Index was complied by the UN Population Fund and advocacy group HelpAge International, and released to mark the UN's Day of Older Persons. Researchers used 13 different indicators - including income and employment, health provision, education, and environment - in what they said was the first study of kind to be conducted on a global scale. The study's authors say countries across the world face an ongoing challenge from the rapidly ageing global population.