Elder Law Prof Blog

New Article From Professor Richard Kaplan

Read anything written by Professor Kaplan. He's the best. Here is the info he provided about his most recent article:

Analyzing the New Planning Opportunities in SECURE 2.0 for Retirement Plan Participants , 42 Elder L.J. 93-114 (2024). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4924711

Abstract: This article examines and analyzes six major changes enacted by the SECURE 2.0 Act of 2022 pertaining to current plan participants in retirement plans. Those changes relate to: (1) increased contribution limits for 60-year-old employees, (2) longevity annuities, (3) charitable gift annuities, (4) long-term care insurance, (5) unused funds in section 529 college savings plans, and (6) emergency withdrawals. These provisions vary considerably in their connection to the principal purpose of employer-provided retirement plans – namely, to finance the retirement of affected employees. But they represent Congressional efforts to address some of the deficiencies in the present tax-subsidized matrix of employer-provided retirement savings plans and may appeal to affected plan participants. In this regard, they continue the pattern of recent years of using pension plans to accommodate an ever-widening array of social initiatives that are related only tangentially, if at all, to providing income when plan participants retire.

 

Thank you Professor Kaplan for letting us know about this latest article!

Nursing Home Staffing and Finances and the Industry's Response to "Historic" CMS Mandates

One of the longest running issues in the operation of nursing homes is adequacy of staffing to provide safe care.  The staffing issues intensified with the COVID pandemic but have not truly eased over the last two years, especially as the constant search for qualified workers is up against immigration restrictions, wage competition in health care, lack of reality-based public funding support, and the "drift" away from personal services in almost all employment sectors.  

Nonetheless, the current Administration and  CMS are not accepting "crisis" arguments as an automatic excuse for inadequate staffing.  In April 2024, the Centers for Medicare and Medicaid Services (CMS) issued final rules for "Minimum Staffing Standards for Long-Term Care Facilities" and "Medicaid Institutional Payments Transparency Reporting."  An April 24, 2024 CMS "Fact Sheet" summarizes the mandates which include phased implementation dates:

Central to this final rule are new comprehensive minimum nurse staffing requirements, which aim to significantly reduce the risk of residents receiving unsafe and low-quality care within LTC facilities. CMS is finalizing a total nurse staffing standard of 3.48 hours per resident day (HPRD), which must include at least 0.55 HPRD of direct registered nurse (RN) care and 2.45 HPRD of direct nurse aide care.  . . . 

 

CMS is also finalizing enhanced facility assessment requirements and a requirement to have an RN onsite 24 hours a day, seven days a week, to provide skilled nursing care. . . . 

 

The Medicaid Institutional Payment Transparency Reporting provisions, finalized in this rule, are designed to promote public transparency related to the percentage of Medicaid payments for services in nursing facilities and ICFs/IID that is spent on compensation to direct care workers and support staff. . . . 

 

Highlights from the Medicaid Institutional Payment Transparency Reporting provisions include: 

• New institutional payment reporting requirements requiring states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and ICFs/IID that is spent on compensation for direct care workers (such as nursing and therapy staff) and support staff (such as housekeepers and drivers providing transportation for residents). These requirements apply regardless of whether a state’s LTSS delivery system is fee-for-service or managed care. . . . 
• Support for quality care and worker safety by excluding costs of travel, training, and personal protective equipment (PPE) from the calculation of the percent of Medicaid payments going to compensation. . . . 
• Promoting the public availability of Medicaid institutional payment information, by requiring that both states and CMS make the institutional payment information reported by states available on public-facing websites."

I turned to the latest issue (June 2024) of McKnights Long-Term Care News to see industry-friendly viewpoints.  The public website often includes select articles from the subscription-based News.  I was especially struck by a new Opinion piece by the Executive Editor of this industry-focused media source.  Under the headline for the article that seems still to be behind a paywall, "A Dangerous Game of Chicken for Nursing Homes," James Berklan begins:

The federal government's first-ever nursing home staffing mandate can be a very dangerous thing  Just maybe not for the reason that many have been portraying. 

 

The administration has stuck its neck out to do what no other had done before it.

 

At the same time, providers are sticking their necks out by doubling down on their poor-mouthing platform.  The one-size-fits-all, unfunded mandate will put countless operators out of business, is the party line. . . .

 

Will enough skilled nursing operators actually start to go belly-up or leave the business and not get replaced by some other operator?

 

In brief, if the final rule's main staffing provisions go fully into effect in a few years and there's not enough loss of skilled nursing capacity, this turns from being a dangerous game of chicken into more like a reputation-killing case of crying wolf.  

 

So, now the intrigue builds.  What happens if the free-market forces continue, as they are wont to do in this country, and investors keep acquiring facilities?

 

Given the billions of dollars currently in play in US long-term care, it would be foolish to think there won't be certain players still looking to make a buck on this business. . . . . 

 

It seems that the government, or at least the current administration (hint) is fully in the consumer-worker camp that believes providers are simply hoarding their reserves, and are able to save their own hides.

 

Clearly, the feds believe they have the upper hand in calling operators' bluff."

 

In my Elder Law Prof Blog post from earlier this week, focusing on private equity investment in nursing homes, I quoted the title from a newspaper's op-ed, using the phrase "tipping point."  It does seem that the feds and the industry agree that somehow the issue of adequate staffing -- with qualified workers -- who expect appropriate pay -- is indeed a key "tipping point" for care-connected senior living.

Pittsburgh-Post Gazette Editorial: "A Tipping Point" for Private Equity Firms in Nursing Homes

Recently, the Pittsburgh Post-Gazette's online publication carried an editorial on a very hot topic, the impact of private equity investment in nursing homes.  The opening paragraph sets the stage for the argument:

The long-term mismanagement of nursing homes by private equity firms has reached a tipping point, resulting in over 20 bankruptcy filings in local elder care facilities in just a few weeks. It’s only the beginning of turmoil for nursing homes run by private equity, and the terrible results should be a lesson guiding future oversight.

As the article explains, while there are a host of bankruptcies in the Pittsburg area, the problem is not "just" a local issue.  Further, the editorial tracks a corporate strategy designed to separate the operational side of the business from the more lucrative "management fee" side of the business, observing: 

Private equity firms extract money from nursing homes in a process called a “sale-leaseback,” or selling the land out from under the facilities for lump payments. Nursing homes are suddenly forced to pay rent or “management fees” to occupy facilities they once owned. This is the same process, in a much less sensitive business, that resulted in the bankruptcy of the Red Lobster restaurant chain.

I once tried to explain to a financial advisor that I wanted nothing to do with investments by private equity into for-profit health care, and especially into nursing home care, as I personally could see no easy way for profit-seeking to create better quality of care.  Did they listen?  It is hard to know.  But, as the editorial also points out, new federal Medicare/Medicaid rules now seek to compel facilities to "disclose their ownership." 

The editorial concludes with especially strong wording, expressing hope that disclosure rules will help to "shift incentives against vulture capitalists, and toward operators that put their patients, not profits, first."  

For more read,  Pittsburgh Post Gazette Editorial, "Private Equity and Nursing Homes are a Match Made in Hell." 

 

Report on 2024 Annual Sonya L. Patterson Memorial Elder Abuse Symposium in Oklahoma

Recently, I participated in a well-organized CLE event, offered annually as a memorial to a great attorney who passed away too soon.  The Annual Sonya Patterson Memorial Elder Abuse Symposium  is hosted by Legal Aid Services in Oklahoma.  By all accounts, Sonya Patterson, who died in an accident while just a few years into her already notable career as an attorney, is a proper subject of this tribute, as she was deeply concerned with advocacy for individuals who may be victims of abuse, exploitation or neglect.                             

Cutting edge topics were a big part of the summer 2024 program.  For example, one new concern is about "dirty deeds," where fraudsters record deed transfers, often targeting properties without any mortgages, and thus often targeting the equity earned by older owners.  We heard from hard-working staff members in the Oklahoma County Clerk's office in Oklahoma City, where the county has created a registry/notification system for owners as a way to receive an "alert" about potential fraud. In one instance, the fraudster was arrested while in the act, at the County Clerk's office!  We also heard about the very real need for pro bono legal assistance on this topic, as many older owners may not have ready savings or cash to pay private attorneys to catch and cure the fraud.  

Here was the full lineup for 2024 Symposium::

• Introduction to Elder Abuse Law: Cassandra Bobbitt & Richard Goralewicz
• Ageism:  Richard Goralewicz
• Step by Step, Slowly it Can Happen: Examining Dynamics of Conflicts of Interest for Lawyers in Representation of Older Persons and Families
• Oklahoma Legislative Responses to Elder Abuse: Oklahoma Representative Nicole Miller
• Cleaning Up "Dirty Deeds," by representatives of a County's Deed Recording Office and Attorney Christopher Jones 
• Recognizing and Responding to Elder Abuse in Indian Country: Peggy Jo Archer, Judith Kozlowski, Margaret Carson
• Undue Influence and Its Ethical Implications: David M. Postic, Adjunct Professor at University of Oklahoma College of Law

At the invitation of Rick Goralewicz, senior law project attorney with Legal Aid Services in Oklahoma, I used the visually interesting tale of a real-life Irish Pub to discuss very real consequences of failing to recognize conflicts of interest for attorneys attempting to represent both the older adult and other family members on planning transactions.  My special thanks to Rick and Attorney Ana Reynolds for inviting me again this year!  

 

A Broadway Play about "Breaking and Keeping the Family Contract"?

At this time of year, when the Tony Awards are about to be announced, I often wish that I'd seen particular productions, as some will inevitably disappear from the stages soon after the awards are announced.  I realize that is happening again this year, as I read a New York Times piece about the Tony-nominated "Mother Play."  From the article, an intriguing hint of what I'm missing:  

In the decades-spanning “Mother Play,” set in the Washington area where [playwright Paula Vogel] grew up, Carl (Jim Parsons, Tony-nominated for his performance) is Phyllis’s doted-on darling boy. He is also the tenacious champion of his worshipful younger sister, Martha (Celia Keenan-Bolger, likewise), a fictionalized version of Vogel. And he is the child cast out when Phyllis breaks what Vogel described as “a contract of parenting and family,” which is “that you take care of your family when they’re dying, regardless.”

So, does that contract, whether negotiated or not, exist.  Did it exist as a social construct?  Does it still exist as implied obligation?  The play is reportedly about "forgiveness," or as one of the actresses offers, "Age has such an impact on the way that we're able to view our parents and their shortcomings."  

I'm sorry to miss the production, which is scheduled to close on Sunday, especially as it has a great cast, including Jessica Lange, real age 75 (how is that possible....?).  But I'll hope for awards on Sunday night, and the possibility the production might last a bit longer on Broadway.  

Meet Crystal West Edwards, a Leader in Elder Law, Special Needs and Estate Planning, who is Meeting the Needs for a Diverse Range of Clients

One of the nicest aspects of getting older as an educator is witnessing how your former students are adapting and thriving in a changing world.  It seems like every week I hear from a former student who wants to share experiences.   Bring it on!  Such calls, emails and texts put a big smile on my face!  

Very recently, I had the opportunity to do a formal interview of a former student.  Crystal West Edwards is a 2008 Dickinson Law graduate.  In law school, Crystal quickly identified the intersection of health law, family law and planning issues as her "place."   And I'm smiling -- and sometimes  joining her in laughter -- throughout her account of daily life as a lawyer.  For more on Crystal's remarkable and successful path in advocacy for older adults, special needs clients, and families with estate and planning concerns, including clients of color, join us for the recording of our interview.  The interview -- available on YouTube --  is part of a new series on Profiles in Leadership, hosted by Dickinson Law Professor Daryl Lim, Associate Dean for Research and Innovation.  

Here is a direct link to cut & paste:

https://youtu.be/DMgMPFB6zPQ

 

Lucidity for Persons Living with Advanced Dementia, from the Perspective of Caregivers

I've been working on an article examining lucidity in persons diagnosed as having some form of dementia.  My analysis has been largely focusing on the implications of lucid intervals for attorneys, including those involved in advising on estate planning and care-related needs.  This has helped me to tap into other ways of thinking about lucidity and most recently I read an article in The Gerontologist, titled "Caregiver Accounts of Lucid Episodes in Persons with Advanced Dementia," published in June 2024, by a research team lead by Jason Karlawish, M.D. at the University of Pennsylvania.  

The article begins with careful look at definitions used in a research study that relied in major part on telephone interviews with caregivers.  For example, threshold questions for the caregivers were whether they had observed or were aware of "any unusually lucid moments" during the most recent four months (or during the final for months of a person's life if they were no longer alive). This approach was to isolate a concept known to the researchers as "paradoxical lucidity."  The working definition for paradoxical lucidity, from a 2019 National Institute on Aging Study, was "unexpected, spontaneous, meaningful, and relevant communication or connectedness in a patient who is assumed to have permanently lost the capacity for coherent verbal or behavioral interaction due to a progressive and pathophysiologic dementing process."  Eventually the study focused on 30 caregivers (and a corresponding 29 individuals with advanced dementia).  All of the final participants were "family caregivers."

There is a lot to unpack in the findings.  Although the length of the lucid moments for a given individual were usually very short -- and the longest was just 45 minutes -- the incidence of such moments across the study population was  frequent.  The findings combined with other empirical studies, lead the researchers to "question the 'paradoxical' in 'paradoxical lucidity.' Here, 'paradoxical' denotes an observation that is inconsistent with disease theory."  The researchers suggested there may be a need to "modify the theory of disease" for "severe-stage dementia."  

The study's caregiver-participants uniformly reported that "witnessing a lucid episode did not influence decisions about medical care."  However, these researchers "found that lucid episodes affected approaches to daily care, shaping, for example how often they brought the person living with dementia into social situations, diet, and sleep schedules."  The article continued:

"Such changes are substantive and important but not framed by caregivers as critical decisions  They are alterations in what might be called the 'ordinary ethics' [citation] of caregiving, evincing shifted understandings of what constitute good care."  

Certainly this study is not being used to talk about legal implications of lucid moments.  That is important too.  

Is the Ability to Retire Becoming a Luxury?

The Tampa Bay Times ran an editorial about the fact that some folks will not be  able to afford to retire. Retirement is a growing luxury in the US  offers that, for various reasons, older workers are returning to the work force after retirement, or not retiring at all.  The editorial discusses a recent survey from AARP, New AARP Survey: 1 in 5 Americans Ages 50+ Have No Retirement Savings and Over Half Worry They Will Not Have Enough to Last in Retirement "shows that "20% of adults ages 50+ have no retirement savings, and more than half (61%) are worried they will not have enough money to support them in retirement. The findings also reveal a decline in overall sense of financial security among men, 42% of whom describe their financial situation as “fair” or “poor,” up from 34% in the beginning of 2022. However, roughly 40% of men who are regularly saving for retirement believe they are saving enough, compared to just 30% of women."

Keep in mind, the editorial cautions, there is a difference between older  Americans who continue to work because they enjoy it compared to those who keep working because they can't afford to retire.  Thee article also discusses the different savings behaviors when the employer offers a plan to help workers save for retirement. 

Is the Ability to Retire Becoming a Luxury?

The Tampa Bay Times ran an editorial about the fact that some folks will not be  able to afford to retire. Retirement is a growing luxury in the US  offers that, for various reasons, older workers are returning to the work force after retirement, or not retiring at all.  The editorial discusses a recent survey from AARP, New AARP Survey: 1 in 5 Americans Ages 50+ Have No Retirement Savings and Over Half Worry They Will Not Have Enough to Last in Retirement "shows that "20% of adults ages 50+ have no retirement savings, and more than half (61%) are worried they will not have enough money to support them in retirement. The findings also reveal a decline in overall sense of financial security among men, 42% of whom describe their financial situation as “fair” or “poor,” up from 34% in the beginning of 2022. However, roughly 40% of men who are regularly saving for retirement believe they are saving enough, compared to just 30% of women."

Keep in mind, the editorial cautions, there is a difference between older  Americans who continue to work because they enjoy it compared to those who keep working because they can't afford to retire.  Thee article also discusses the different savings behaviors when the employer offers a plan to help workers save for retirement. 

Is the Ability to Retire Becoming a Luxury?

The Tampa Bay Times ran an editorial about the fact that some folks will not be  able to afford to retire. Retirement is a growing luxury in the US  offers that, for various reasons, older workers are returning to the work force after retirement, or not retiring at all.  The editorial discusses a recent survey from AARP, New AARP Survey: 1 in 5 Americans Ages 50+ Have No Retirement Savings and Over Half Worry They Will Not Have Enough to Last in Retirement "shows that "20% of adults ages 50+ have no retirement savings, and more than half (61%) are worried they will not have enough money to support them in retirement. The findings also reveal a decline in overall sense of financial security among men, 42% of whom describe their financial situation as “fair” or “poor,” up from 34% in the beginning of 2022. However, roughly 40% of men who are regularly saving for retirement believe they are saving enough, compared to just 30% of women."

Keep in mind, the editorial cautions, there is a difference between older  Americans who continue to work because they enjoy it compared to those who keep working because they can't afford to retire.  Thee article also discusses the different savings behaviors when the employer offers a plan to help workers save for retirement. 

Laura Tamblyn Watts Publishes Advice for Kids About Aging Parents

I have my copy. Have you purchased yours yet?

Baby Boomer Asset Transfers Doesn't Mean Millennials are financially set

The New York Times ran an article, A Wealth Shift That Could Leave Some Younger Americans Behind,  The article discusses a significant wealth transfer that will occur as boomers reach the end of their lives, but notes some boomers and families do not fit that narrative.

Baby boomers have trillions of dollars in wealth that some economists predict will have a significant impact on their millennial-aged children when they inherit the cash, homes, stock portfolios and other assets their elders hold. But experts say that the narrative of millennials’ paying off debts and wielding greater spending power over the next two to three decades is complex — and leaves out families without enough assets to pass along.

In addition, there seems to be a lack of sharing of financial information between the generations which can lead to misconceptions, among other things. And there is always a chance that the boomer parent may need to pay for long term care for a length of time.  Yes there is going to be a significant wealth transfer as the boomers reach the end of their lives. But it is not going to be across the board; instead it will depend on the circumstances.

What Services Are Provided by ALFs?

Might want to advise clients to check the admissions contract to see if the ALF will pick up a resident if they fall.  According to an article in the Washington Post,  not all facilities will do so.  Senior homes refuse to pick up fallen residents, dial 911. ‘Why are they calling us?’ "Lift-assist 911 calls from assisted living and other senior homes have spiked by 30 percent nationwide in recent years to nearly 42,000 calls a year, an analysis of fire department emergency call data by The Washington Post has found. That’s nearly three times faster than the increase in overall 911 call volume during the same 2019-2022 period, the data shows."  The article notes this is prevalent in Illinois.  Why is this happening? To avoid liability and cost the article offers. Further, facilities may have a policy against lifting a resident, so examine the contract for a "no lift" clause. 

"The dispute over lift assists comes as improvements in fire safety and the nation’s aging population have changed the nature of a firefighter’s job. Today, fire and EMS agencies are more likely to deal with an older adult fall victim than a fire victim... and [l]ift assists are now the seventh most common type of 911 call...."

Excellent Efforts To Improve Care In Connecticut

The Connecticut Mirror reported on a bill that overwhelmingly  passed the Connecticut House that does a lot to improve care for older Connecticut residents. House passes broad bill overhauling aspects of elder care sector notes that this " legislation overhauling the state’s elder care system, including requiring more oversight of home care workers, creating a speedier process for accessing Medicaid, and launching a registry to make it easier for consumers to find caregivers." Further it "creat[es] an online registry of employees, requir[es] home care workers to wear badges with their name and picture, and creat[es] a presumptive eligibility program for people who need to access Medicaid quickly and want care at home."

Nice to see some positive legislation.

 

P.S.

Leaving the East Coast of the U.S. to the Midwest, did you happen to catch this story from Wisconsin?  The Associated Press ten days ago reported on this story Republican Wisconsin Senate candidate says he doesn’t oppose elderly people voting. This story arose as a result of an interview where the candidate was opining about residents of nursing homes having the ability to vote.  The background and more details can be found here.

Combining Education and Community Service for Pennsylvania Law Students: "Wills for Heroes"

On a recent Saturday in April, I had the privilege of spending the day -- almost 9 hours, in fact -- with first responders and veterans, and sometimes their children, plus attorneys, notaries, and law students at an event in Central Pennsylvania.  The students, lawyers and notaries were all volunteering their time to prepare wills and other key estate planning documents for community area residents at the Cumberland County Good Hope Fire Station, in Mechanicsburg, Pennsylvania.   The Wills for Heroes event had a full slate of 50 spots for clients, and the seats seemed full all day.  In fact the last two sets of documents were witnessed about 4:30 in the afternoon.  Shown here are two Penn State Dickinson Law students, Alaina Kuzmitsky (R) and Devon Lacy (L), working under the direction of a notary and local attorney.

The Wills for Heroes program is organized in Pennsylvania under the auspices of the Pennsylvania Bar Association's  Young Lawyers Division, with the support from individual county bar groups. Paul D. Edgar, Esq., who is the incoming President of the Cumberland County Bar Association, and who currently spends his weekdays in the state Attorney General's office, provided a great training session and set everyone up in the large community room of the very busy Good Hope Fire Station. There were 10 well-spaced tables devoted to interactions between teams of lawyers and law students, for discussion about wills, powers of attorneys and advance health care directives. Separate tables offered witnesses and notaries for final documents.  Law students from both Penn State Dickinson School of Law and Widener Law Commonwealth were fully engaged in the drafting and review process, a great opportunity for combining their hands-on education with public service.   

In addition to Devon and Alaina, the Dickinson Law contingent included several students who were completing an "experiential component" of a Spring semester Elder Law class (Jonathan Biedler, Caitlin Godsey, Talmage Pearce, Devon Lacy, and Joe O'Donnell), three first-year law students (Aidan Levinson, Kristen Ramillano, and Maedot M. Teweldemedhin), two additional upper division law students (Hannah Pasco and Payton Pittman), plus LLM student Naby Bangoura.  Also, one of the practicing attorneys, Fred Gibson, is a recent graduate of Penn State Dickinson Law, who identified his professional interest as potentially including estate planning and elder law while still in school -- and is now helping other law students do the same.    

LLM Student Naby Bangoura wrote to me after the event to express his thoughts on what he described as "key" components to the event, including the use of software that permits customization of the documents.  It was an opportunity for him to recognize how in the United States, the Rules of Professional Conduct governing attorneys apply "even" during free legal services.  He offered a comparative, international perspective, observing: 

"It is truly extraordinary that the Pennsylvania Bar has brought together different professionals, including attorneys, notaries, and students, to assist individuals in drafting their wills at no cost. I have rarely seen this type of synergy and collaboration between professionals from different backgrounds in jurisdictions such as France or West Africa. Although I have attended some pro bono services in France during Covid, which concerned the impact of force majeure on business operations and some remedial measures they could explore, this kind of in-person collaboration and experimental learning is extremely valuable. I wish such initiatives could be experimented with in other parts of the world."

Finally, the firefighters and emergency personnel working at the Station welcomed everyone to their Station with generous offerings of food and coffee throughout the day, and an opportunity to take photos with the fire trucks at the end of the day.  We appreciate your service to the community and it was a pleasure to talk with so many of you.

Pennsylvania Law Schools' Elder Justice Consortium Hosts Free Webinar in Support of National Healthcare Decision Day

In support of the National Healthcare Decisions Day (annually on April 16), the Pennsylvania Law Schools' Elder Justice Consortium hosted a free webinar on April 9, 2024.  The hour-long webinar, soon to become available also as an on-demand recording, introduces a host of topics relevant to advance planning, whether for attorneys in assisting clients, or for the public, including introduction to the types of documents that individuals might want to adopt (such as a Healthcare Power of Attorney, a "Living Will," or a single document that combines both concepts), and what steps are important in making your wishes known to your chosen agent and supporting family members or healthcare providers.  

This free webinar was another "first" for the EJC Consortium -- providing an opportunity for  legal educators to reach audiences outside the doors of each of our law schools. 

Here is a short article authored by one of the attendees, Jonathan Biedler, a third-year law student at Penn State Dickinson Law, whose own post-graduation plans focus on estate planning and elder law.  Jonathan writes:

The EJC includes all the Pennsylvania law schools and was formed in 2022 at the call of the Pennsylvania Supreme Court. This was in response to the growing recognition of the need for advocacy on elder justice: neglect, abuse, decision-making, housing, etc., as the senior population of Pennsylvania grows. The goal is to combine the specialized experience of clinic professors, classroom professors, career services, deans, and students as members. The Webinar was in anticipation of National Healthcare Decision Day, which is on April 16th, the day after Tax Day. This date was suggested by attorney Nathan Kottkam in 2006 and was inspired by Benjamin Franklin’s famous statement that "in this world nothing can be said to be certain, except death and taxes" with the idea being to encourage people to also think about end-of-life planning and advance directives.

 

The EJC Webinar was moderated by Duquesne Kline Law Professor Kate Norton, the EJC’s first chair. Speakers were the EJC’s incoming Co-Chairs Grace Orsatti (Duquesne Kline Law) and Mary Catherine Scott (Widener Law Commonwealth), Brandon Corbalis of the SeniorLAW Center, Professor Spencer Rand of Temple Legal Aid Office, Professors Monica Harmon, a healthcare professional at Drexel's Dornsife Center for Neighborhood Partnerships and Professor Katherine Pearson, Penn State Dickinson Law, and Clinic Students Eliza Hens-Greco and Nick Piccirillo, both of  Duquesne Kline School of Law.

 

The speakers discussed the role of Elder Law. Elder Law, in a broad sense. focuses on those aged 60 or older and their family members, often including people with special needs.  Professor Pearson said that as opposed to estate planning’s focus on after death plans, Elder Law often emphasizes protecting and enabling the older client financially and personally in life. The speakers discussed the Office of Elder Justice in the Courts, set up by the Pennsylvania Supreme Court to advise the courts on how to prevent elder abuse, 

 

We heard an update on Act 61, a new Pennsylvania law that will be be implemented by courts by June of this year, with key features requiring appointment of counsel for those alleged to be in need of a guardianship, plus training and certification of all guardians, and a requirement for Pennsylvania courts to make specific determinations whether there are less restrictive alternatives than "guardianship" that would better serve the needs of an alleged incapacitated person.

 

Of course, given the theme of the program, the speakers also discussed the importance of advance healthcare directives, which are legal documents laying out a person's instructions relating to medical care and they recommended that people of all ages should have a document reflecting their goals. Such written documentation have recognition "under the law" and thus can support individual  autonomy and the ability to make decisions for ourselves. The speakers emphasized the importance of making sure your primary care and emergency doctors have access to -- and actually review -- the advance directive. Law students Eliza and Nick talked about their own experiences working with clients on advance directives and how at first it was scary and a bit sad to begin the conversation, until they shifted their mindset to think about the conversation as bringing peace and clarity for both the client and the client’s family. In closing remarks, Professor Monica Harmon, speaking from her experience in nursing and public health, emphasized that advance directives can be individualized and encouraged talking with the person you wish to name as decisionmaker to convey that nuances that may be hard to fully encode on the written page.

 Thank you, Jonathan, for this write-up!

 

 

Case Western Reserve Hosts Law-Med Conference on Diminished Capacity and the Law

Law and Bioethics Professor Sharona Hoffman, Co-Director of the Law-Medicine Center at Case Western Reserve University organized a terrific symposium on Cognitive Decline and the Law, held on March 1, 2024.  Thank you, Sharona, for inviting me to participate!   

In my talk, I  suggested that the time has come for clearer thinking on a long-standing legal standard, known in many jurisdictions as the "Lucid Moment" or the "Lucid Interval Doctrine," that has permitted attorneys' testimony on clients' orientation in time, place and person to suffice as evidence of sufficient capacity in legal transactions, even in the face of expert medical testimony about Alzheimer's Disease or other advanced dementias. Research demonstrates that Canadian academics have been  questioning reliance on "lucid intervals in dementia" as early as 2015.  My additional thanks to Penn State Dickinson Law student and research assistant extraordinaire, Noah Yeagley, for joining us at the conference and who was especially enjoying this conference opportunity to revisit his pre-law school graduate work in neuroscience.

The day began with a keynote presentation by Dr. Carol Barnes, University of Arizona, addressing "Brain Mechanisms Responsible for Cognitive Decline in Aging."  One key takeaway for me from her presentation was that while physical exercise is important for overall health, "learning new things" is probably even more important in maintaining cognitive function over time.  

The first set of panelists dug deeply into the roles of people supporting others in decision-making, whether with the aid of formal "supported decision-making agreements" and use of powers of attorney or different forms of substituted judgment.  Rebekah Diller, Clinical Professor at Cardozo Law, Megan Wright, Professor of Law and Medicine at Penn State Law, and James Toomey, Assistant Professor of Law at Pace University were the presenters on cutting-edge issues.

In the second panel, Neurology Professor Mark Fisher from the University of California Irvine was very timely in his focus on the potential for cognitive decline in both voters and candidates in politics, discussing a wide range of possible examples across history in the U.S. and Israel.  Associate Professor Jalayne Arias from Georgia State University School of Public Health demonstrated significant concerns in the overlap between criminality and dementia, whether from the standpoint of arrest, conviction, incarceration, or release of persons with cognitive declines.

Sharona Hoffman did double duty during the packed day, presenting issues of cognitive declines both in the workplace and on our roads.   She used humor to soften some of the tough news on the lack accountability for risk in either domain.  It was clear from the audience response -- in both the sold-out auditorium and on-line -- that everyone has a story about dementia and drivers, often from our own families.

My long-time friend working specifically in the "elder law" space, Nina Kohn, Professor of Law at Syracuse and now also a Distinguished Scholar in Elder Law at Yale Law School, gave the latest on proposed -- and much needed -- reforms in court-appointed guardianships, highlighting key concerns addressed in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act,  adopted as of today in two states, Maine and Washington, and introduced or pending in at least four more states.

The speakers in the important last panel of the day were clearly looking to the future on research and developments in the diagnosis, care and community response needed for "healthier" approaches to problem-solving.  Dr. Jonathan Haines, a genetic epidemiologist at Case Western Reserve University, surveyed the advances and challenges in attempting to build a deep bank of genetic information on Alzheimer's Disease. Law Professor Emily Murphy at UC Law San Francisco outlined the emerging theory of "collective cognitive capacity" as an approach to the challenges posed by social, environmental, and economic factors that may be impacted by brain health and cognitive decline.  Tara Sklar, the Director of the Health Law and Policy Program for the University of Arizona College of Law spoke on the potentials and challenges for telemedicine in treating patients with cognitive declines. Professor Sklar is also the new chair of the AALS Section on Aging and the Law.  

A packed day, for sure, with support from Virginia Lefever, Editor for CWLR's journal of law and medicine, Health Matrix, who was receiving formal drafts of papers 
from presenters for a future issue.

And for those of us who were determined to follow Dr. Barnes' encouragement to "keep learning," the evening did not end early, as we continued with a tour of the University's wonderful public art spaces and then on to the world-renowned art collections at the Cleveland Museum of Art -- including a "First Friday" party that had lots of people dressed up and dancing!  "Hands"-Down, it was a great conference!

Penn State Dickinson Law Supports the Search For Equity in Aging

On February 16, 2024, my law school, Penn State Dickinson Law, hosted its monthly session on Race and Equal Protection of the Law (REPL) and this time our focus was on the search for equity in aging.

One of the first speakers was Sahar Takshi, whose work at Justice in Aging focuses on implementing the organization's strategic initiatives on advancing equity.   The initiative centers advocacy on issues that directly address systemic inequities faced by:

• Older adults of color,
• Older women,
• LGBTQ+ older adults,
• Older adults with disabilities, and
• Older adults who are immigrants or who have limited English proficiency.

Sahar offered definitions of core terms, including cultural competence and cultural humility, implicit bias, and a concept that I'm hearing more and more about, "vicarious trauma." I had thought of this as an emerging concern for health and human services providers, who may be repeatedly exposed to clients' and patients' traumas, with the potential for unacknowledged negative impacts on their ability as "helpers" to cope, or to be able to provide consistent levels of service.  Sahar reminded us that lawyers may be affected in this way,  and perhaps may even be subject to greater self denial.  (P.S. I learned our law school is offering a course on this topic in the Fall of 2024!). 

Justice in Aging also has teamed with Community Legal Services of Philadelphia (CLS) on a funded out-reach initiative to older adults in the Philadelphia region.  Part of the project focused on how the concept of racial justice needs to consider the importance of Medicaid as the largest public payer for long-term services and supports.  One challenge is that receiving Medicaid may hit low income families in disproportionate ways, as the state's "recovery program" may target their only asset -- their home.  Presenter Pam Walz,  a supervising attorney at CLS in the Health and Independence unit, explained the needs for families of color to be able to access sound legal advice in order to avoid unfair Medicaid Estate Recovery impacts.  

One of the rising stars at the REPL program was Olivia Robbins who is a paralegal in the Homeownership and Consumer Rights Unit at CLS in Philadelphia.  Olivia provided a fascinating, detailed history of concerns about "tangled titles" and how there is a huge need for appropriate estate planning support to avoid this phenomenon.  My 1L students were definitely asking for more information on this concern.

New Jersey Elder Law specialist Crystal Edwards, CELA, helped to introduce the day's program for Penn State Dickinson Law, adding her words of support for stronger outreach to clients of color and the importance of attorneys of color for planning services.  Crystal reminds us that "help" for older adults and their families comes from private attorneys too; indeed, Friday's program was a holistic overview of public, private, local and national networks for equity in aging, highlighting  the significance of race, gender, immigration status, and orientation when bias factors include "growing older." 

I provided an example from recent news stories about the intersection of "bias" impacting quality of care for  older people who are also persons of color.  The publication Nature recently published a comprehensive review of how "fingertip oxygen sensors," that are a tool for catching "low" oxygen levels for people in nursing homes and which were especially during the height of the COVID pandemic, can fail to give accurate readings on dark skin. As the article reports, "Studies --some decades old -- have established that the devices . . . can overestimate the amount of oxygen in the blood of people with dark skin which could lead health professionals to delay or decide against treatment."  Penn State Dickinson Law Professor Sarah Gerke commented on the troubling history in the Nature publication.  

Visiting Professor Allison Lintal presented our students with important information to close the REPL session about restrictive housing laws or policies at a state or local level that fail to support co-housing, a potentially vital need for older people who can benefit from companionship and a team approach to financial support or care.   

My deep appreciation to all of the speakers at our program, helping to introduce our first-year law students to the "search for equity in aging." 

Washington Continuing Care (CCRC) Residents Present Specific "Asks" for Consumer Protections to State Officials

On February 5, 2024, residents of "continuing care retirement communities" (CCRCs), also known as "life plan communities" (LPCs), made a formal presentation to officials from several departments of Washington State government, specifying key regulatory priorities when considering "financial solvency" for this segment of the "senior living industries."  I was able to sit in on the meeting, as someone who has worked with Washington residents about their concerns.

CCRCs are a relatively new focus for legislators in the state of Washington, with "registration" of CCRCs becoming an option in 2017.  But examples of concerns offered by residents demonstrated their concern that a clear state system of  regulation is overdue.  The spokespeople for WACCRA, the state organizations of CCRC Residents in Washington, were organized, detailed and offered precedents from other states. They requested legislation that:

• Provides formal "licensure" by the state
• Provides key Resident Rights, including Ombuds' support for dispute resolution
• Requires facilities to participate in periodic financial reviews, including actuarial reports, in order for the State to better ascertain the ongoing ability of the CCRC to meet both short- and long-term commitments
• Mandates limitations or prohibitions on facilities' use of residents' payments for services not directly related to resident needs
• Some method by which residents' contracts and entrance fees are prioritized in the event of a bankruptcy
• CCRCs be required to fulfill promises of "refundable entrance fees," in a timely and fair manner, such as a system of "first out/first repaid"
• Adopts stronger safeguards for funding of "life time care," perhaps through guarantee or surety bonds
• Permits residents to participate as voting members of each CCRC's Board of Directors
• Assures "meaningful and effective enforcement" of CCRC's obligations to residents, including financial solvency

Additional stakeholders in CCRCs and LPCs including LeadingAge Washington and, of course, operators of any of these enterprises.  A series of similar meetings are to take place from February through April of 2024.  The goal is a final State report to the Legislature no later than July 16, 2024.

An Analysis of States with Best Elder-Abuse Protections

Recently I was one of several academics invited to provide short commentary on state efforts to provide older adults and their families with protection against elder abuse.  I was interested to read the final on-line article, which offers a comparative approach, analyzing 50 state systems plus Washington D.C.,  for reporting, investigating and taking action where abuse of older adults is suspected or reported.  The site used what are described as "16 key indicators of elder abuse protection in three overall categories."   

Here is a ink to the article, "States with the Best Elder-Abuse Protections."

The article is by Adam McCann, WalletHub Financial Writer, and is published online on December 13, 2023.  There are several drop-down menus for additional information, including the interviews with academics speaking from a variety of perspectives, including  Sharona Hoffman, Professor of Law and Bioethics at Case Western Reserve University School of Law.