Monday, May 17, 2021
The New York Times published an article, In Reversal, Retirements Increased During the Pandemic. "After decades in which it decreased, the retirement rate rose during the pandemic, according to the latest government data. This makes retirement one exception to the many ways that the pandemic accelerated pre-existing trends .... " The article examines the explanations for this trend, such as losing employment, an employer going out of business, and the higher risk of illness for those employees who are older. The article predicts that the trend won't continue. "Even though the retirement rate increased during the pandemic, it won’t necessarily rise further. It’s worth emphasizing that the retirement rate rose around the start of the pandemic but did not continue to do so. After the initial spike in joblessness at the start of the pandemic, the share of those 55 to 64 who were out of work but not retired fell rapidly without a further rise in retirement."
Families in Texas have been hard at work the last two years, responding to the deaths of loved ones in Dallas-area senior-living communities who may have been killed by a serial murder suspect. Organizing under the name "Secure Our Seniors Safety," they have pressed for an array of legislation to compel care-giving communities to provide greater accountability, including reporting suspicious activity such as employee concerns, where there is potential risk to vulnerable adults. One of the bills, "Marilyn's Law," or HB 723 was named after one of the suspect's victims. Marilyn's daughter had initially been told her mother, who was living in a care center, had died of "natural causes." The death certificate was later amended, but the daughter only learned from news reports that her mother may have been one of the suspect's victims, suffocated with a pillow.
From a recent Dallas News article:
The first bill filed in response to a string of slayings at Dallas-area senior living communities passed the Texas Senate on Thursday and now awaits Gov. Greg Abbott’s signature.
For the families who say their loved ones were killed by a serial murder suspect, it’s a moment more than two years in the making. . . .
The bill passed Thursday is named for Pangburn’s mother, Marilyn Bixler. Marilyn’s Law, or HB 723, was introduced by two Collin County lawmakers — Sen. Angela Paxton and Rep. Jared Patterson — after The Dallas Morning News first reported Pangburn’s story.
The new law will require officials to notify next of kin if a cause of death is amended.
The bill was signed into law by the Texas Governor on May 15, 2021.
Chemirmir, a suspect in at least 17 murder, theft or attempted murder cases, awaits trial because of delays related to Covid-19, according to news reports, including national news profiles.
For more on related legislation pending in Texas, see "Death Certificate Bill Filed in Response to Chemirmir Case Passes in Austin."
May 17, 2021 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, May 16, 2021
The ABA Journal recently ran an article, As the legal profession ages, dementia becomes an increasing concern. "There is no comprehensive information about how often ethics officials and lawyer assistance programs deal with lawyer dementia, according to Bloomberg Law. But the percentage of lawyers older than age 65—about 14%—is higher than the 7% of workers generally in that age group, suggesting that the problem could be worse in the legal profession." The article discussed the potential difficulty for identifying lawyers who may have dementia as well as the variety of state requirements regarding the obligation to notify the disciplinary authority of an attorney who may have dementia. ABA ethics opinion 03-429 is discussed, as well as the Illinois story of Robert Fritzshall.
May 16, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0)
Friday, May 14, 2021
The National Consumer Voice for Quality Long Term Care has released an FAQ, Nursing Home Visitation and Quarantine: Frequently Asked Questions (FAQs) & Advocacy Strategies for Families. The ten questions addressed in the FAQ include the restriction on frequency, location, and length of visitation; refusal of visitation because of staff shortages or positive tests; whether the SNF can require visitor to be vaccinated or have a negative COVID test; the scope of compassionate care visits; the impact of briefly leaving a facility; and the distinctions for residents who have been vaccinated. In addition the FAQs offer some suggested actions that may be taken as well as strategies. The full FAQ is available here.
Monday, May 10, 2021
This semester at Dickinson Law, I've been teaching a comparative law module on Social Security Benefits. We've been spending more time than usual examining issues associated with basic "retirement benefits" rather than the more complicated topics of Social Security Disability (SSD) and Supplement Security Income (SSI) benefits.
A group of us ended the semester with an interesting hypothetical. Imagine that a retired, older client has a DWI -- his second within some number of years -- involving property damage and, thankfully, no direct endangerment to anyone's life or safety. Assume a damaged mailbox or telephone pole. The state law might treat that as a misdemeanor, but because it is a second offense, it could still mean substantial jail time. The client is thinking about pleading guilty, even if the sentence is 60 to 90 days. The older client might be thinking "the faster I get this over, the faster I can get home and headed back in the right direction with my life."
Do lawyers advise such clients of the potential impact of incarceration, whether in a jail or prison, on his or her right to receive basic Social Security benefits? This was a new topic for me and of course that sent me scurrying for information. Here's what I've read so far:
- The Social Security Administration has a December 2019 brochure, entitled "What Prisoners Need to Know."
- Federal statutory law currently provides, at 42 U.S.C. Section 402(x)(1)(A), that "no monthly benefits shall be paid" to any individual who is "confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense" for 30 continuous days or more. Does this mean the trigger for loss of benefits is 30+ days of confinement for any crime, even a misdemeanor? While a related regulation, at 20 CFR Section 404.468, provides that no monthly benefits shall be paid if the confinement is for a "conviction of a felony," (my emphasis added) it may be that regulation's language reflects pre-1999 statutory law. See e.g., amendments to Section 402(x) set forth in P.L. 106-170 (Dec. 17, 1999), 113 Stat. 1860, an act with the ominous name of "Ticket to Work and Work Incentives Improvement Act."
- Cases explain that since 1983, the statutory mandate to suspend payments applies to basic retirement benefits, as well as SSD and SSI, and can also trigger a demand for refunds of any SS program funds "overpaid" during confinement, potentially reducing any future benefits the individual would otherwise receive once out of jail. See e.g., Zipkin v. Heckler, 790 F.2d 16 (2d Cir. 1986).
- Attempts to challenge the application of Section 402(x) by arguing the law violates substantive due process, equal protection or is unconstitutional as a bill of attainder or ex post facto law have not met with success. See e.g., Butler v. Apfel 114 F.3d 622 (9th Cir. 1998).
Back to our hypothetical. The client might be planning to go home after 30, 60, 90 days or more in jail, but what if the client was depending on SS retirement income -- reflecting his life-time work record -- in order to keep making house payments for that time?
Originally the theory of suspending federal SS payments focused on "disability" payments, because the confined individuals were being maintained at public expense and their inability to work is a consequence of their criminal conviction, not their disability. But what of the 1983 amendment, expanding the suspensions to SS retirement income? In the Zipkin case linked above, at page 18-19, the Second Circuit rejected any distinction:
"We can perceive no reason why prisoners whose retirement benefits are suspended would have a need for replacement of income while prisoners whose disability benefits are suspended do not. Rather, prisoners, as a group, do not have the need for a continuing source of income that nonprisoners typically may have. . . . Social Security retirement benefits are designed to satisfy certain baseline economic needs, reasonably predictable when a worker retires. . . . They are not benefits held in trust and payable per se."
It is a tough world, right? But does it need to be this tough? According to the Social Security Administration's recent statistics, among elderly Social Security beneficiaries, "21% of married couples and about 45% of unmarried persons rely on Social Security for 90% or more of their income." Feel free to add your own thoughts in the "comments."
Sunday, May 9, 2021
Published recently in the New York Times, She Bought a Truck on eBay, Then Forgot It. A Dementia Diagnosis Came Later. discusses how a lack of financial capacity may be an indicator of dementia.
[M]oney troubles aren’t unusual among people who are beginning to experience cognitive decline. Long before they receive a dementia diagnosis, many people start losing their ability to manage their finances and make sound decisions as their memory, organizational skills and self-control falter, studies show. As people fall behind on their bills or make unwise purchases and investments, their bank balances and credit rating may take a hit.
The isolation that came from COVID may have allowed a number of cases to go undetected, since there wasn't the same level of interaction with folks. "Many older people have remained isolated from loved ones who might be the first to notice unpaid bills or unopened bank notices." Check out the finding from one of the studies mentioned in the aticle
Another study, published in JAMA Internal Medicine in November, used data on Medicare claims and from the Federal Reserve Bank of New York/Equifax Consumer Credit Panel to track people’s credit card payments and credit scores. The study found that people with Alzheimer’s and related dementia were more likely to miss bill payments up to six years before their diagnosis than were people with no diagnosis. The researchers also noted that the people whose dementia was later diagnosed started to show subprime credit scores 2.5 years before the others.
Read this article---it's important!
Thursday, May 6, 2021
The most wheelchair-friendly theme parks in the US explores the five most accessible parks (and you may be surprised at which ones made the list). The five are: Morgan's Wonderland, Morgan's Inspiration Island, Disney World, Holiday World & Splashin' Safari, and Hershey Park and ZooAmerica.
Stop and think for a minute about this: we all benefit from wider accessibility. Thanks to my colleague and dear friend Kelly Feeley for sending me this article.
Wednesday, May 5, 2021
AARP recently released this report, 2021 Tech Trends and The 50-PLUS: Top Ten Biggest Trends.
Here are the ten:
In 2020, a year when a global pandemic significantly limited social interaction, technology became more important than ever — for everyone.
Video-chat is here to stay.
The dependency on tech has created new social behaviors, although it’s too soon to tell what will stick around.
Older adults are doing more with their smartphones, by development over time or necessity, and using them more frequently.
2020 is the year older adults adopted, updated, and modernized their tech, and many spent big bucks to do so.
Smart TV’s were the second-most popular tech purchase.
2020 brought a dramatic shift in how adults 50-plus consume entertainment. Growth in streaming was huge, but cable tv is still important (for now).
Some barriers to technology adoption and use still exist for older adults.
Privacy is an important but misunderstood issue for many.
Disparities related to access have a significant impact on technology adoption and use among older adults.
Take a look at the findings for #10. This is pretty darn important:
• Sixty percent of adults 50-plus say the cost of high-speed internet is a problem for them personally.
• On average older adults spend $269 a month (16% of their budget) on tech expenses such as internet, cellphone, cable, and streaming
services (average estimated monthly costs: internet, $68; cellphone, $103; cable, $78; and streaming services, $20).
• A quarter (23%) of rural customers acknowledge that access to high-speed internet is a major problem for their community.
• And while older, urban customers have ample access to high-speed internet such as cable and fiber, they, like rural customers, indicate
that cost is a major problem (23% and 26%, respectively).
• Fifteen percent do not have any type of internet or are not sure if they have it.
The skateboarder, wearing a flannel shirt and black sneakers, glides a board plastered with stickers toward a kick-turn in a sun-dappled concrete bowl.
The image might seem like the embodiment of the shredding youth, but something is different. The skater looks noticeably risk-averse, wearing a full ensemble of pads and traveling at a speed not much faster than a grocery cart. With his graying hair and paternal air, he could pass for a clergyman.
Still, he’s out there, doing it. Never say that the Nirvana generation stopped rocking.
The scene is plucked from an AARP television spot to debut during Sunday’s Academy Awards telecast that targets Generation X, .... In addition to Gen Xers, the spot also features a few younger baby boomers, doing tai chi and performing TikTok dances with their children (or perhaps grandchildren).
The article discusses various characteristics of the Xers and what it might mean as they plan for retirement.
Aging, the great equalizer!
Tuesday, May 4, 2021
I've had several recent opportunities to talk with individuals serving as primary caregivers for family members who have varying stages and types of neurocognitive disorders, including but not limited to age-associated dementia. One common concern in these conversations has been "that could have been my family member."
They are referring to news reports and body-cam videos of two officers in Loveland, Colorado in June 2020, as they apprehended, handcuffed, and took down "in a controlled manner" (the officers' description) a disoriented 72-year old woman. The officers were intent on arresting the woman following a report of her alleged "shoplifting" attempt of $14 dollars' worth of items at a local Walmart.
According to the federal civil rights suit filed on April 16, 2021, the actions of the police officers fractured Karen Garner's left arm, dislocated her shoulder, and terrified her. She was left for hours, crying and begging to go home while handcuffed in a booking cell, with no medical assistance offered or provided. One booking room video shows the officers laughing and commenting about the body-cam footage.
Such conversationa explained what many caregivers were thinking about when they learned what happened to the "frail little thing" (the officer's word), the 5 foot tall, 80 pound woman who had earlier been diagnosed with "mild" dementia:
- It could have been a lawyer's uncle, who has PTSD following return from tours of military duty and an IED injuty in Afghanistan;
- It could have been a colleague's father, who was diagnosed with FTLD causing him to lose inhibitions, sometimes involving confusing behavior in public;
- It could have been an older friend who recently needed help because she could not find her way through the "new" self-checkout system at the grocery store;
- It could have been a member of my family, as my sister related to me a story I had not heard before, about how our mother, distracted by a cell-phone call, walked out of a grocery store without paying for groceries and didn't realize that until after she had loaded them into her car;
- It "was" a man in his 60s with early onset dementia who wandered away from his home one night, only to be arrested for loitering and placed in a special containment area of the jail, where he was beaten to a pulp during the night by his cellmate (as I have written about before, here).
May 4, 2021 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases | Permalink | Comments (1)
Experts believe that the incidence of elder mistreatment has grown with the rising opioid epidemic.1 Older people commonly experience chronic health conditions and associated pain for which opioids are prescribed. Mounting reports of opioid misuse have been documented among elders addicted to drugs and their adult children who steal their medication. Though there is little data to quantify the breadth of the problem, reported incidents of opioid misuse often result in financial exploitation and may be accompanied by other, co-occurring forms of mistreatment such as emotional abuse and physical harm. Despite the complexity of this issue, opioid-related elder abuse is an injustice that we can address and prevent. Health care professionals, in particular, must be aware of the signs of abuse to identify mistreatment and intervene to avert harm to their older patients.
The fact sheet offers 10 red flags, advice from experts, and a number of resources.
Monday, May 3, 2021
Mark your calendars for May 11 at 2 eastern for Title II Auxiliary Benefits: Social Security Benefits You’ve Never Heard of and Who is Eligible for Them.
When most people hear about “Social Security benefits,” the first thought that comes to mind is income for older individuals who have retired from work. It’s true that the Social Security system provides a foundation of retirement income that permits older adults to live in dignity, with over 46 million retired workers receiving benefits each month.
However, the Social Security system is also the foundation of economic security for millions of family members of retired, disabled, or deceased workers. In addition to retirement benefits, Social Security offers disability insurance protection to workers and their spouse and children, as well as life insurance that pays monthly survivors benefits to dependents if the worker dies.
Join this training to learn more about the eligibility requirements for benefits for spouses and ex-spouses, children, and parents. About one American family in four receives income from Social Security benefits, and many more could receive this income if they knew they were eligible. These benefits offer an opportunity to provide more financial stability to eligible older adult households.
To register, click here.
Thursday, April 29, 2021
The AALS Section on Aging and the Law will focus its annual meeting program on inequality and aging. The conception of the program is broad and intended to encompass all matters of legal concern that involve age and inequality. Potential topics include but are not limited to aging in the criminal justice system, contact between family and nursing home residents during the COVID-19 pandemic, the disparate impact of policies within the Medicare and Medicaid programs, vaccine distribution policies, the rights and wages of care workers, the impact of technology on access to legal assistance, and economic inequality in later life based on disability, gender, race, sexual orientation, or other characteristics.
If you are interested in participating, please send a 400-600 word description of what you would like to discuss. We particularly encourage submissions from junior scholars and members of underrepresented groups in legal academia. Submissions should be sent to Professor Alexander A. Boni-Saenz, email@example.com by June 1, 2021.
Wednesday, April 28, 2021
Touro College Jacob D. Fuchsberg Center is pleased to host the virtual Aging, Health, Equity, and the Law Conference on September 13, 2021. The conference theme focuses on structural and systemic questions about discrimination and equity that older adults experience, and on policies recognizing these different challenges and promoting equity. The conference features individual presentations, panel presentations, and discussion groups. The conference will be held online with no registration fee. New York CLE credit will be available.
A non-exhaustive list of presentation topics might include:
Inequities in COVID-19 Care for Seniors, including State Responses to Deaths of Nursing Home Residents from COVID-19, and Caregiving
Vaccination Priorities in the COVID-19 Pandemic
Rationing of Health Care
Disparities in Wealth Creation, Housing, Employment, or Planning Based on Age, Race, Ethnicity, Class, Sexual Orientation, Disability, Gender or Gender Identity
Social Determinants of Health for Seniors
Age and Disability Discrimination
Elderly Prisoners, including Perspectives on Incarceration as a Public Health Issue and Compassionate Release
Telehealth Digital Divide
Historical and Current Perspectives on Elder Law, Health Care, and Race
Anti-Racism Approaches to Teaching and Learning Elder Law and Related Topics
Incorporating Cultural Sensitivity in Elder Law Courses
Presentation Guidelines, Deadline, and Submission Instructions
The program committee welcomes individual proposals and panel or discussion group proposals. Individual presentations will be 25 minutes including questions. Panels or discussion groups will be 50 minutes including questions. Presentation proposals are due by June 18, 2021.
The proposal should include:
- Presenter name(s), email, title, school affiliation, and mailing address
- Title of the proposed presentation or discussion group
- Presentation format: presentation, panel presentation, or discussion group
- A description of what you would like to discuss (300-500 words)
Submit your proposal through the conference website www.tourolaw.edu/ahelc. Email Professor Joan Foley at firstname.lastname@example.org with any questions. The program committee may not be able to accommodate all proposals.
Presentation proposals are due June 18, 2021.
Friday, April 23, 2021
Despite being referred to as the “model minority”, elder abuse is prevalent in the Chinese community.
Core values of filial piety and family harmony profoundly shape the response to elder mistreatment among this population.
Definitions of psychological abuse and financial exploitation in the Chinese community are unique compared to other populations.
Experiences of immigration and acculturation shape an older Chinese immigrant’s experience of elder mistreatment.
Intervention recommendations include involving family members in educational/support programs, improving communication between elders and adult children, emphasizing traditional cultural values, and increasing care and support for victims, especially women.
After discussing a number of factors, the research brief offers tips for working with the victims and adding to the body of research.
The next research brief, Mistreatment of Korean Elders , offers these takeaways:
Filial piety, family harmony, and patriarchal values profoundly shape the response to elder mistreatment in the Korean community.
Definitions of psychological abuse and financial exploitation among Korean elders are unique compared to other populations
Immigration and acculturation experiences shape an older Korean’s experience of elder mistreatment.
Korean elders are less likely to seek outside help or disclose family problems.
Promising intervention strategies include providing educational information on financial abuse, improving communication between elders and adult children, involving indigenous healthcare providers and religious leaders in elder abuse education, and increasing help-seeking behaviors.
After the discussion of the issues, the research brief offers tips for working with Korean elders and adding to the body of research.
Thursday, April 22, 2021
According to the Employee Benefit Research Institute, the share of households headed by someone 55 or older with debt — from credit cards, mortgages, medical bills and student loans — increased to 68.4 percent in 2019, from 53.8 percent in 1992. Bankruptcy rates among older adults are also rising.
The Covid-19 pandemic may be adding to their woes. A survey at the end of 2020 by Clever, an online service that connects home buyers and sellers with real estate agents, found that on average, retirees had doubled their nonmortgage debt in 2020 — to $19,200. .. [B]usiness cutbacks had forced many older adults to retire earlier than planned. Others left work for health reasons or to care for family members ...
Also driving this rising debt load are soaring medical costs, the steep decline in pensions, growing housing expenses and low interest rates on savings. To make ends meet, many older adults are known to skip meals and to cut pills to stretch prescriptions, according to a survey by the National Council on Aging.
Tuesday, April 20, 2021
Kaiser Health News recently provided an overview of the changes proposed by the Biden Administration to long term care. Biden Seeks $400 Billion to Buttress Long-Term Care. A Look at What’s at Stake provides this overview:
The services in question. Home and community-based services help people who need significant assistance live at home as opposed to nursing homes or group homes.
* * *
The need. At some point, 70% of older adults will require help with dressing, hygiene, moving around, managing finances, taking medications, cooking, housekeeping and other daily needs, usually for two to four years.
* * *
Medicare limitations. Many people assume that Medicare — the nation’s health program for 61 million older adults and people with severe disabilities — will pay for long-term care, including home-based services. But Medicare coverage is extremely limited.
* * *
Medicaid options. Medicaid — the federal-state health program for 72 million children and adults in low-income households — can be an alternative, but financial eligibility standards are strict and only people with meager incomes and assets qualify.
* * *
The article additionally reviews the impact on family caregivers and the workforce, questions about the Administration's proposal and some suggestions for reform. Stay tuned; this isn't going to be a quick or easy journey.
Here are some of the highlights:
Facilities should allow indoor visitation at all times and for all residents except in certain specific circumstances.
There are now fewer circumstances under which indoor visitation can be completely suspended.
Fully vaccinated residents can have close contact, including touch, with visitors as long as they wear a mask and practice hand hygiene.
Visitors should not be required to be tested or vaccinated as a condition of visitation.
CMS continues to emphasize that facilities shall not restrict visitation without a reasonable clinical or safety cause and that nursing homes must facilitate in-person visitation consistent with the federal nursing home regulations.
Visitation must be person-centered and “consider the resident’s physical, mental, and psychosocial well-being, and support their quality of life.”
The summaries and significant takeaways are available here.
As well the Consumer Voice has released the Summary of the Centers for Disease Control and Prevention's Guidance on Quarantine for Residents of Long-Term Care Facilities, which is available here.
Monday, April 19, 2021
The National Consumer Coalition for Quality Long Term Care announced the release of a podcast, The Care For Individuals With Dementia. Here's a description of the podcase.
When the needs of residents living with dementia are met, incidences of resident stress are significantly reduced. Practicing person-centered approaches and interventions increase the likelihood that the message being communicated by the resident will be heard and addressed, leading to better outcomes and more satisfaction for the individual. In this episode of the Pursuing Quality Long-Term Care podcast, Dr. Jonathan Evans and Lori Smetanka of Consumer Voice talk about caring for human beings with dementia.
The podcast can be accessed here.
Thursday, April 15, 2021
Kaiser Health News ran an interesting story about aid in dying in Montana. Getting a Prescription to Die Remains Tricky Even as Aid-in-Dying Bills Gain Momentum
[I]n 2009, the Montana Supreme Court had, in theory, cracked open the door to sanctioned medically assisted death. The court ruled physicians could use a dying patient’s consent as a defense if charged with homicide for prescribing life-ending medication.
However, the ruling sidestepped whether terminally ill patients have a constitutional right to that aid. Whether that case made aid in dying legal in Montana has been debated ever since. “There is just no right to medical aid in dying in Montana, at least no right a patient can rely on, like in the other states,” said former state Supreme Court Justice Jim Nelson. “Every time a physician does it, the physician rolls the dice.”
The article discusses the legislative efforts on both sides of the issue. Fascinating story!