Wednesday, May 22, 2024

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.

May 22, 2024 in Current Affairs, Health Care/Long Term Care, Retirement | Permalink

Monday, May 13, 2024

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...."

May 13, 2024 | Permalink | Comments (0)

Wednesday, May 1, 2024

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.

May 1, 2024 | Permalink

Sunday, April 14, 2024

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

Paul D. Edger  Esq.  (far right) is the Incoming President of Cumberland County Bar Assoc. and was the Director for the day of Wills for Heroes April 2024On 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. Penn State Dickinson Law Students Devon Lacy (L) and Alaina Kuzmitsky (R) Serve as  witnesses to finalize or Wills for Heroes April 2024

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. Full House at Wills for Heroes Event hosted at Cumberland County Good Hope Fire Station April 2024   

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.

April 14, 2024 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, International, Legal Practice/Practice Management, Programs/CLEs, Veterans, Web/Tech | Permalink | Comments (0)

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

Pennsylvania Elder Justice Consortium members 2024 jpeg

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!

 

 

April 14, 2024 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Saturday, March 2, 2024

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. IMG_0764

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. Public Art on Campus at Case Western Reserve March 2024

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!

March 2, 2024 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security, State Cases, Statistics | Permalink | Comments (0)

Tuesday, February 20, 2024

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. Penn State Dickinson Law Students February 2024

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." 

February 20, 2024 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Monday, February 5, 2024

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.

February 5, 2024 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, December 13, 2023

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.  

 

December 13, 2023 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, October 26, 2023

Organized, Thoughtful, Collaborative Advocacy: The Maturing of Resident Organizations in Senior Living

Coast-to-coast travel can be challenging -- and inspiring.  Both was true for me this last week as a result of spending hours on the road and in airplanes to attend annual meetings as an invited speaker for two resident organizations on opposite sides of the country, one in New Jersey and one in Washington state.  ORANJ was established by residents of Continuing Care Retirement Communities (CCRCs) in 1991 for the purpose of "supporting, empowering, and bettering the lives of seniors" living in New Jersey.  WACCRA was incorporated in 2015  with a mission of "education, collaboration and advocacy" among residents of CCRCs,  and I had the privilege of watching its early organizational stages from 2012 to 2014.

ORANJ Annual Meeting 2023  with Barbara Trought and Rick OberEach organization has worked diligently to reach residents of Continuing Care Retirement Communities, sometimes called Life Plan Communities, in order to identify concerns that might be shared by their respective communities.  Over the years, the leaders have developed deep knowledge bases and they use media (including websites, blog posts or newsletters, flyers, topic-specific Zoom meetings, and "consumer guides" relevant to future residents) to share their knowledge and to build collaborative in-state networks and to participate with other CCRC resident organizations across the country. 

History has proven that the formats used by most CCRCs involve some form of high-dollar admission fee, plus monthly "service" fees, that generate substantial funds.  These funds are used to develop and operate communities that offer independent living units in a supportive environment, plus key opportunities as needs change for greater assistance and skilled care and/or memory care. There are now multiple formats with different types of CCRC contracts governing the relationships between individual residents and the community. 

Ongoing strength of a community has long been tied to careful management of the funds, especially the admission/entrance fees, which may put the residents in the position of unsecured creditors if serious financial problems arise.  Thus, over the years, residents in several states have sought key consumer protections through legislation.  WACCRA, for example, retains a seasoned, professional lobbyist.  Volunteers at ORANJ, including attorneys who reside in New Jersey CCRCs, lead the way in building relationships with legislators.  

The membership base for New Jersey and Washington is slightly different in approach.  In New Jersey, resident associations at 25 CCRCs are members of ORANJ and had representatives of the associations, plus interested people attending the 2023 annual meeting on October 18, 2023.  In Washington, membership includes individual residents of most of the 23 CCRCs in the state.  Family members of residents can also have memberships, a step which is important for recognizing how CCRC living can impact the family as a whole.  WACCRA's annual meeting took place on October 21 at a CCRC just outside of Seattle and the ballroom was packed, plus there were additional members who attended via a live streaming feed.   

Perhaps most impressive to me was the work underway in each states to present or respond to proposed legislation affecting relationships between the public, residents and the providers of this unique format for senior living.   In Washington, for example, WACCRA is making careful, step-by-step progress on legislation to facilitate transparency about finances, scope of operations, and fundamental consumer protections. This effort will build on key legislation enacted in 2017 whereby CCRCs must register with the state. WACCRA Annual Meeting 2023 with Presidents Laura Saunders (L) and Donna Kristaponis (R)
   

In New Jersey,  there is a bill pending that focuses on the timing of refundable fees and, if passed, would require such refunds within 12 months of a resident's death or departure.  There was important discussion about whether and why ORANJ and LeadingAge New Jersey & Delaware may be aligned in their responses to this proposed legislation.

Both annual meetings included Q and A with panels of members active in the organizations.  While I was asked to speak separately on what I see as key consumer protections for residents of CCRCs and the role of state laws, in both states it was a pleasure for me to point to the the discussions provided by the panel members who are already fully engaged in advocacy for such safeguards.

I was impressed and inspired by the work of both residents and resident organizations, and the professional approaches that are well underway, sometimes with the assistance of experienced lobbyists.  I know similar advocacy is ongoing in several other states. The common goals are clear: residents appreciate their communities and they want to see them thrive, and their experiences demonstrate that better transparency about finances and protections for residents will further the goals.

My special thanks to Barbara Trought, Rick Ober, and Ron Whalin at ORANJ and to WACCRA presidents Laura Saunders (incoming) and Donna Kristaponis (outgoing) for their leadership work, and especially to Donna for her warmth, wine, and laughter as my host at Emerald Heights.    

October 26, 2023 in Consumer Information, Current Affairs, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (2)

Thursday, October 19, 2023

Pennsylvania Law Schools Jointly Report Their Support for Elder Justice to State Supreme Court

The Elder Justice Consortium, with representatives appearing on behalf of each of the 9 law schools in Pennsylvania, made their second "in person" report to the Justices of the Pennsylvania Supreme Court, with the event this year taking place on October 16, 2023 in Pittsburgh.   The Elder Justice Consortium, or EJC for short, is unique, as it brings together all of the law schools in a single state to advocate on a topic of common concern.  EJC meets regularly to consider how to meet the need for effective representation, which requires effective education of law  students about issues that directly impact older adults. Meeting Room for Elder Justice Consortium and PA Supreme Court Justices  October 16 2023 

Among the activities reported this year include an Elder Justice Day program to introduce the public to available services, and regular meetings and forum events to highlight ongoing services, including the Elder Law Clinic at Widener University  Commonwealth Law School, the Sikov Elder Law Clinic at University of Pittsburgh Law, and the most recent matters for older people handled by students at the Gittis Legal Clinics at the University of Pennsylvania Carey Law School.  Deans from all of Pennsylvania's law schools were also in attendance for the oral presentation and discussion, demonstrating the high level of committment to enhanced education addressing the needs of older people.   

The Consortium initiative began during the summer of 2022 in response to Chief Justice Deborah Todd's concerns about inadequate efforts within the state to represent older adults.  Professor Kate Norton from Duquesne University Thomas R. Kline School of Law delivered the written report, and opened the discussion session with the Justices.   My thanks to Tom Lee, Penn State Dickinson Law's Director of Career Services, for his ongoing interest in elder law, and for supporting placement of our students in Legal Service positions, including in programs directly serving older persons in Central and rural areas of Pennsylvania.  Tom provided the photo used here! 

October 19, 2023 in Consumer Information, Programs/CLEs, Statistics | Permalink | Comments (0)

Sunday, July 30, 2023

NYT's Ethicist: "My Friend is Trapped in a Nursing Home. What Can I Do?"

The New York Times runs a regular column called The Ethicist.  It poses intriguing problems and the most recent one is definitely relevant to families, older individuals (and potentially anyone with a disability) and elder law attorneys.  Because the analysis is behind a paywall for "subscribers only," I am reluctant to say too much here  But I can say that the question of what happens when someone with "reduced" cognitiion becomes entangled in a well-meaning but still demeaning care setting, makes the need for experienced legal assistance exceptionally clear. This particular essay would make a great problem for  a student seminar!  

See My Friend Is Trapped in a Nursing Home:   What Can I Do?  presented by columnist Kwame Anthony Appiah, in the New York Times online edition published July 28, 2023.  

July 30, 2023 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Thursday, July 27, 2023

What Happens When Living Isn't Easy in Senior Living?

 

L to R Katie Dang  Katherine Pearson and A.V. Powell in final preparation for the Pennsylvania Elder Law Institute July 2023More than 300  lawyers and other professionals attended the recent Pennsylvania Elder Law Institute (July 25-26, 2023) held in Harrisburg. It was good to be back among long-time friends as well as new colleagues -- our first time together in "real time" since 2019.  The programming began with a tribute to Jeffrey A Marshall, recently retired as a Williamsport, Pennsylvania attorney, who has been a guiding figure for the development of speciaized knowledge and skills for lawyers committed to helping older persons and their family members with practical concerns about care, financing, capacity, agency and more. 

This year the program once again began with a comprehensive "Year in Review" that focuses on recent and proposed legislation or rulemaking, demographic trends, and case law.  Deep appreciation to Marielle Hazen and Rebecca Hobbs for all of their hard work on this key presentation.  Important "keynote"speakers included David Lipschutz, Associate Director for the Center for Medicare Advocacy and legendary Tennessee Elder Law attorney Timothy Takacs.  

I had the pleasure of teaming with Katie Dang and A.V. Powell for a 90-minute session about "What Happens When Living Isn't Easy in Senior Living?" Central topics included concerns about contract rights and obligations in nursing homes, plus we made a deep dive into factors that can affect financial soundness of continuing care retirement communities (also known as CCRCs or life plan communities). 

Katie reported on successful efforts to avoid a one-sided contract of adhesion and help a family negotiate fair payment terms for a parent's admission to a nursing home.  She demonstrated key language to strike or modify to reduce the potential for unintended consequences of signing such agreements. Katie Dang  Esq speaking on advising clients about nursing home admission agreements for PA Elder Law Institute 2023

We also reported on a recent Ohio appellate case that rejected a nursing home's attempt to argue a family members was contractually obiligated to personally pay for care.

 

A.V. Powell  actuary  speaking on meaures of solvency in CCRCs at Pennsylvania Elder Law Instiute 2023
A.V. brought to the conversation his dry wit and 40+ years of  experience as a professional actuary.  He has analyzed the fiinancial viability of hundreds of CCRCs around the country.  He noted that Pennsylvania is the birthplace of the CCRC concept and he emphasized the significance of current residents who seek accountabiity by making requests to governing boards for timely evaluations of financial conditions.  A.V. also provided us as lawyers with ways to guide clients who are prospective residents in identifying how an enterprise can provide long-range reassurances about sound finances.   Trust is essential for a model that offers, on the one hand, a holistic approach to purpose-buldt housing, great food (and nutrition), activity and, if needed, nursing or dementia care, but, on the other hand  also expects people to pay thousands of upfront dollars in the form of admission fees plus significant monthly maintenance fees.    

Photos used here are by my summer research assistant, the great Noah Yeagley.  Thank you, Noah!  One of the fun aspects of this conference is being able to introduce current students to practitoners and getting to catch up with so many of my former Penn State Dickinson Law students, including Jared Childers, the incoming Chair of the Pennsylvania Bar's Elder Law Section, and who recently became an adjunct professor at Dickinson Law.  Congratuatlions, Jared!  

July 27, 2023 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Medicaid, Programs/CLEs, Property Management, State Cases | Permalink | Comments (0)

Friday, June 16, 2023

Thinking about Legacies

Recently I spent a fun evening helping to celebrate the good deeds of one of Penn State Dickinson Law's alums, Hubert X. Gilroy.

Alexis de Tocquiville Humanitarian Award 2023
He was being awarded the Alexis de Tocqueville Humanitarian Award by the local chapter of United Way, and the room was full of people who know Hubert from his many roles in our community.  Former and current clients were there, judges and fellow lawyers, cycling buddies, running buddies, basketball buddies, YMCA colleagues, and on and on.  He has raised literally millions of dollars for charitable endeavors and he's played many leadership roles, including as a member of the Board of Governors for our law school, and as the frequent coach of our students' moot court or mock trial teams.  Hubert Gilroy  Esq.

Last evening there were a lot of laughs, often at "Bertie's" expense (and some of the stories may have even been true!), but the laughs were always warmly shared and that made me appreciate him all the more.   

Thanks for your continuing inspiration, Hubert! 

June 16, 2023 | Permalink | Comments (0)

Thursday, May 25, 2023

Updates on Aid-in-Dying Legislation

I noted a couple of developments  concerning medical aid-in-dying laws that I wanted to share.

First, Vermont became the second state to eliminate the reseidency requirement for aid-in-dying.  This change was pursuant to litigation by a plaintiff in Connecticutt. See Vermont Removes Residency Requirement for Medically Assisted Deaths  and   see VT HB 190,  https://legislature.vermont.gov/bill/status/2024/H.190. The language of the bill amending the statute is available here.

And on the other side of the issue of the right to assistance-in-dying, a group in California has challenged their law. Kaiser Family Foundation (KFF) Health News reported last month that Disability Rights Groups Sue to Overturn California’s Physician-Assisted Death Law. The article notes the platinffs' argument that "that recent changes make it too easy for people with terminal diseases whose deaths aren’t imminent to kill themselves with drugs prescribed by a doctor" and that this law and its process "'steers people with terminal disabilities away from necessary mental health care, medical care, and disability supports, and towards death by suicide under the guise of ‘mercy’ and ‘dignity’ in dying,' the suit argues. The terminal disease required for assistance is, by definition, a disability under the Americans with Disabilities Act...."  A story about the litigation is available on NPR here.

May 25, 2023 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Wednesday, May 24, 2023

Age of Elected Officials Once Again in the News

Perhaps the age of elected officials is never really out of the news with  the question being whether a candidate is too old or too young. Maybe age is garnering more attention because of the upcoming presidential election and the ages of candidates.  But it's not just presidential candidates.  The age of some Senators has been drawing attention. Why Dianne Feinstein, Like Many Before Her, Refuses to Let Go; Opinion,The U.S. Senate, it’s senior living made permanent. Join today! (satire); and for a different take, an article  forwarded  by Professor Naomi Cahn, 80 is different in 2023 than in 1776 – but even back then, a grizzled Franklin led alongside a young Hamilton.

Google "how to think about President Biden's age" and you will get a # of results which run the gamut from articles to opinion pieces.  Is it really about age? Or is it about the ability to do the job? This New York Times article,   How Much Do Voters Really Care About Biden’s Age?  reviews polls and research and is a pretty interesting read.   Age is definitely a factor, but so is party affiliation, among other factors, the article notes. 

I suspect each of us will reach our own conclusions about the ideal age of candidates, whether in local, state, or national races. And it's only a matter of time before the question regarding the age of Supreme Court Justices is in the headlines again.   

May 24, 2023 in Consumer Information, Current Affairs, Other | Permalink

Tuesday, May 23, 2023

Aging Issues in the News

To me, it seems recently there are more articles  in major publications about aging than in the past. For example, yesterday in the Washington Post, there were three: 

‘Granny flats’ play surprising role in easing California’s housing woes

Seniors are flooding homeless shelters that can’t care for them

and 

an opinion esssay, My neighbor lived to be 109. This is what I learned from him.

The "Granny Flats" article notes that this popular name for accesssory dwelling units is someo thing of a misnomer today as the focus of the article is on the popularity of using  ADUs to help with the housing crisis:

The numbers tell the tale: More than 23,000 ADU permits were issued in California last year, compared with fewer than 5,000 in 2017 — which was around when ADU permitting began to take off thanks to legislative and regulatory changes in the state. The state now requires faster permit approval by localities, and establishes that cities must allow ADUs of at least 850 square feet — though many are much bigger. A number of other bills are being debated in Sacramento, including one by Assemblymember Phil Ting (D) that would allow property owners to sell their ADUs separately from their main houses.

The second article, also on housing, is more troubling, noting the number of elders who are unhoused.

Nearly a quarter of a million people 55 or older are estimated by the government to have been homeless in the United States during at least part of 2019, the most recent reliable federal count available. They represent a particularly vulnerable segment of the 70 million Americans born after World War II known as the baby boom generation, the youngest of whom turn 59 this year.

Advocates for homeless people in many big cities say they have seen a spike in the number of elderly homeless, who have unique health and housing needs. Some communities, including Phoenix and Orange County in California, are racing to come up with novel solutions, including establishing senior shelters and hiring specially trained staff.

...

“It’s just a catastrophe. This is the fastest-growing group of people who are homeless,” said Margot Kushel, a professor of medicine and a vulnerable populations researcherat the University of California at San Francisco.

The opinion piece is based on a forthcoming book about the author's 109 year old neighbor.  ("This essay was adapted from “The Book of Charlie: Wisdom from the Remarkable American Life of a 109-Year-Old Man,” by David Von Drehle.")

And these articles are in addition to articles about the debt ceiling negotiations.  Off to read more.

May 23, 2023 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other, Retirement, State Statutes/Regulations | Permalink

Monday, May 22, 2023

Arizona Feature: "Arizona Seniors At Risk of Harm"

Appearing on the front page of the Sunday edition of the Arizona Republic (5.21.23),  the first paragraphs of an extended feature article point to the potential for harm to residents and the consequences of staff shortages or inattention at Arizona facilicities caring for residents with dementia. Two women in their 90s  are residents of an elegantly appointed assisted living facility-- but as the article begins they are covered in blood -- and the investigation of what happened there is hampered by the inability of anyone to give clear explanations. 

The feature, based on the newspaper's review of "thousands of pages of police and state regulatory reports," offers multiple reasons for such injuries in "senior living" facilities, including a lack of clear reporting rules and the absence of investigation by state agencies, especially for facilities licsenced for "assisted living" as opposed to "nursing home" care.  From the  feature:

In memory care units, anything can become a weapon -- toilet plungers, shoehorns, electric razors, TV remotes, metal trash grabbers and walking canes. Hundreds of vulnerable seniors, particularly those with dementia, contend with violence at the end of their lives in the very places that promise to keep them safe. 

 

Shortages of staff-- brought on by companies looking to maximize profits or stave off financial losses -- lead to more harm. Assisted living facilities can keep resident clashes underwraps [in Arizona] because regulartors don't make facilities report incidents to their state licensing agency.  Federally regulated nursing homes have to report but little attention is paid to the problem.

 

The Arizona Republic combed through thousands of pages of policce and state regulatory reports to find more than 200 clashes at senior living facilities from mid-2019 to mid-2022. Residents punched, hit, pushed, kicked, poked scratched, bit, elbowed or spat on other residents or employees.

Experts consulted by the Arizona Republic noted that one "key [to reducing problems] is tailoring a [resident's] care plan to each resident's needs, equipped with activities that bring their lives a sense of purpose."  Further, "[a]ssisted living facilities commonly get in trouble for having inadequate, delayed or out-of-date plans for residents that outline their need or for failing to follow those plans."

The article cautions that if a problem is not tracked, "it doesn't exist":

The Arizona Department of Health Services licenses facilities and is responsible for investigating complaints but assisted living centers don't have to report nonfatal injuries to the agency.  

 

That's not normal.  Most states require facilities to report to their licensing agency when residents get hurt, according to The Republic's review of state laws.

The feature suggests that "Arizona lawmakers and regulators have prioritized the needs of assisted living and nursing home companies over their residents," comparizing Arizona to  "[a]t least 17 states [that] require assisted living facilities to get inspected about once a year, with a few even requiring two inspections per year. " 

For the full Arizona Republic feature published in its print version on May 21, 2023, look for  "Arizona seniors at risk of harm: Facilities experiencing staff shortage, residents with dementia enable violence," by reporters Caitlin McGlade, Melina Walling and Sahana Jayaraman. The extended Sunday feature appears to follow several shorter articles available online in May from the same reporting team. 

May 22, 2023 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, May 15, 2023

Signficant Article from NY Times

This is one of the most important and comprehensive articles I've read on dementia, consent, elder abuse, and guardianship.  

The Mother Who Changed: A Story of Dementia was published on May 9, 2023.  I plan to assign it to my students.  I hope you read it.

May 15, 2023 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink

Monday, May 8, 2023

Ohio Appellate Court Confirms that Agent Not "Personally Liable" for Costs of Nursing Home Care

In one of the earliest articles I wrote on familiy member liability under nursing home contracts, I cautioned that federal law prohibits nursing homes from requiring "guarantees" of payment by family members.  Any family member who is asked to sign "on behalf" of a loved one should carefully consider the role he or she is undertaking, especially if the only role acceptable  and affordable for that family member is "agent."  See "The Responsible Thing to Do About 'Responsible Party' Provisions in Nursing Home Agreements," published in 2004 in the Unversity of Michigan Journal of Law Reform.   

On May 1, 2023, an appellate court in Ohio cited this article when concluding that in the case before it, the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care.  The daughter appears to have properly cooperated or assisted in the original Medicaid application.  Further, the daughter gave authority to the nursing home to debit the bank account where her mother's SS checks were deposited each month, in order to pay itself the "patient pay portion" of the monthly allocation for costs of care when a patient has low income but is otherwise eligible for Medicaid.  Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000, a resource limit that can trigger disruption of  Medicaid benefits.  There was still another party that could be faulted for what appears to have been an unplanned "excess resource" situation.  The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminaating Medicaid.   See National Church Residences First Community Village v. Kessler, 2023 WL 3162188  (Ohio Ct. App. 2023).  

Bottom line?  Family members or others attempting to help an incapacitated person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligability for Medicaid.  Further, clear, direct communications between the agent, the facility and state agencies are important when seeking to facilitate prompt, proper payments.  

Overwhelmed family members should not be scapegoats, even (especially?) when overwhelmed state agencies and facility billing offices are themselves missing opportunities to keep benefit payments flowing properly.  

May 8, 2023 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0)