Elder Law Prof Blog

Insolvency for CCRCs: What Can Happen When there is Mismanagement in One Facility? Consequences for Many

Earlier this year, I posted about a significant rescue effort for a once prominent, but increasingly troubled CCRC in North Carolina.   The new operator appears to have experience, adequate financial resources to generate support for operations, and a realistic viewpoint on the shared goals for the faith community affiliations.  Time will tell whether the seemingly strong working group succeeds.  

Beginning last week, however, we see a far different outcome, where rescue plans for a CCRC in Florida have failed with dramatic consequences.

Tampa Life Plan Village, doing business as Unisen Senior Living, a nonprofit CCRC in Hillsborough County, Florida, was a troubled facility.  Once known as University Village, the operation was working on a reorganization plan with a goal of exiting bankruptcy court in 2019.  A group of individuals, including one Ronald Shuck, were approved as new Board Members for Tampa Life.  However, by 2022, it became increasingly apparent that the operations were falling ever deeper into debt. There were indications of failure to file required financial reports with the State.  Multiple new marketing attempts failed to generate new sponsorships or a new operator.  Back into bankruptcy court.  In the spring of 2024, on short notice, the remaining residents, more than 100 in number, were compelled to find new homes, requiring help from multiple sources. By July 2024, the doors had closed. Press reports made clear the level of devastation for residents and also for the staff that had tried to continue to provide adequate supports.  

One year later, on April 30, 2025, the former Board president of the Tampa Live Plan Village was arrested following allegations of mismanagement.  According  to the Florida Department of Financial Services press release, Shuck was arrested  "on charges of Continuing Care Contract Fraud, a third-degree felony.  If convicted, he faces up to five years in prison."  According to the press release, an investigation is continuing into potential liability of others.

Shortly before the arrest a detailed Examination Report on the history at Tampa Life Plan Village was released by the Florida Office of Insurance Investigation, including a finding that the operating boards "failed to carry out responsibilities to the residents under its life care contracts," as well as other contract promises to residents for shelter and services.   

The day after the arrest, LeadingAge issued a press release announcing the formation of a working group with the Florida Life Care Residents Association (FLiCRA) in partnership with other key stakeholders" dedicated to "reviewing and strengthening regulations" for Florida's Continuing Care Retirement Communities.   The same day, McKnight's Long-Term Care News filed a report describing similar responses in other states to news of other troubled CCRCs.  FLiCRA published its own report on calls for reforms in March 2025.

I was struck by the May 1 headline on the McKnight's Long-Term Care News report, describing CCRCs and residents in various communities around the nation as banding together for new regulations "amid a bankruptcy blitz."  

Last week was quite the week for stories about fraud against the elderly. We also learned the sentences for five individuals who pleaded guilty or were found guilty by a jury for a "conspiracy scheme to defraud the retirement accounts of elderly and retired Florida school district employees" in a net total theft of $1.1 million.  For more details read the Press Release of the U.S. Attorney's Office for the Northern District of Florida dated May 1, 2025.

State Laws, Financial Expertise, Resident Engagement: Possible Lessons to be Learned from a North Carolina CCRC's Financial History

North Carolina has a relatively robust history of public interest in and regulation of Continuing Care Retirement Communities (CCRCs).  Therefore, indications as early as 2019 that a long-established CCRC in North Carolina was in financial trouble caught my attention.  State regulators eventually initiated formal supervision of the recovery efforts. This month, it appears there is some good news for residents at Aldersgate, as a new potential "owner" of the nonprofit operation has been identified, one with:

    (a) experience in operating nonprofit CCRCs in the same state,

    (b) a similar philosophical or social "mission" in providing long-term living older residents, and

    (c) its own established history of sound financial operations.

Charlotte (N.C.) Ledger's Managing Editor, Cristina Bolling, has stayed on top of the Aldersgate CCRC developments, including its most recent indications of rescue.   See "High Hopes," reported here.   At one point, both Ms. Bolling and I spoke about financial options for CCRCs in crisis for an NPR affiliate. See WFAE's Charlotte Talks Program on "A Closer Look at Continuing Care Retirement Communities" from February 2024. 

When regulated, Continuing Care Retirement Communities, also called Life Plan Communities, are subject to individual state laws, not federal regulations. North Carolina's Department of Insurance has an active online presence, listing the 50+ CCRCs operating in North Carolina.   Here's a bit of the North Carolina legislative history to consider in thinking about the events involving Aldersgate:

North Carolina adopted threshold legislation in 1989 requiring any business "offering or providing continuing care" in the state to obtain a license from the Commissioner of Insurance, with requirements for disclosure of finances and facility development information.  That is the starting place.

Looking to the long-term, the legislation granted authority to the Insurance Commissioner to require the CCRC to provide actuarial reports that estimated the "capacity of provider to meet its contractual obligation" to residents, including reports on expected refunds or capital expenditures in accordance with standards set by the American Academy of Actuaries.

What are actuarial reports? These reports apply mathematical and statistical methods to analyze and assess financial risks to assist in making informed decisions in the future.  North Carolina grants the Insurance Commissioner the power to require both actuarial reports and accountants' reports.  The North Carolina laws require written reporting to both the state and residents.  North Carolina's CCRC laws are set forth at N.C. Gen. Stat., Article 64, Sections 58-64-1 through 58-64-85.  

The statutory authority for CCRCs in North Carolina also includes creation of a Continuing Care Advisory Committee Appointed by the Commission, with its nine members to include "at least two residents of facilities, two representatives of LeadingAge North Carolina and a licensed CPA."  In other words, more than one viewpoint to provide perspective.  

In the event of financial insecurity, the Commissioner has specific authority to initiate "supervision" of the facility, whether or not bankruptcy proceedings have begun.  The purpose of such supervision would be to rehabilitate or, if necessary, liquidate, a provider. With Aldersgate, the indications of serious financial problems included slow -- or no -- payments being made on refundable fees due for residents and bills submitted by service vendors.  See Cristina Bollings' Charlotte Ledger news article in February 2024.  

North Carolina's statute has been amended on at least three occasions, thus suggesting ongoing legislative attention to the viability of CCRCs within the state, with additional measures also under consideration.  

In North Carolina, residents are granted a statutory "right of self-organization, the right to be represented by an individual of the resident's own choosing, and the right to engage in concerted activities"  in order to informed about the operations of the facilities.  By comparison, in Pennsylvania, I've been hearing disturbing accounts about attempts to restrict residents to communications by and through "only" the Residents' Council "created" by the CCRC management, even though Pennsylvania CCRC laws support residents' rights to organize.  

Significantly, the statutory authority for oversight of CCRCs in North Carolina was preceded by the organizational efforts of residents throughout the state, who in 1988 founded a statewide residents' association, now known as the North Carolina Residents Association (NorCCRA).  Also significant is the role played by a CCRC resident, Dr. Harry Grove, a former law school dean, who was actively involved both in the formation of NorCCRA and North Carolina's emerging rules.  For more on the state residents' association, see https://www.norccra.org/

Why did Aldersgate's problems expand to the point of institutional insolvency? CCRCs often generate significant incoming "cash" in the form of high entrances fees, while also charging residents monthly service fees intended to cover regular operating expenses.  CCRCs now usually offer options of either refundable and nonrefundable entrance fees. New residents in any CCRC need to consider the terms for refundable fees carefully.  Legal or financial advice from experienced professionals can assist future residents. It is important to understand that "refundability" may be promised.  But promises, which are not guarantees, involve carefully drafted terms; the terms reflect the reality that these funds are important financial resources for CCRCs.

With refundable fees, management can face unique challenges in establishing appropriate reserves and operating ratios. Actuarial reports combined with accounting statements can guide an enterprise to make responsible decisions on use of cash and help to track the use of such cash. But reports alone cannot prevent misspending or unrealistic expansion plans.  Residents and states have learned, sometimes the hard way, that it is "pennywise" to keep a close eye on how CCRCs are managing that "cash," especially if the enterprise has promised "refundability" of such fees in whole or in part when the resident moves or passes away.  

Looking at the longer arc of history for CCRCs and Life Plan Communities in the U.S., the Aldersgate history is a reminder that laws alone cannot prevent financial insolvency.  But, it seems that North Carolina has been attentive to the reasons for financial issues at Aldersgate and has taken a number of appropriate steps to help a well-situated community get back on a track of solvency, but with new "ownership."  

Thinking About Implications of Mishandled Research into Alzheimer's Disease and Related Disorders

As someone who has spent the majority of my academic career thinking about legal implications of age-associated cognitive impairments, I've often been tempted to write about the latest science-based "breakthroughs," especially as they may relate to Alzheimer's Disease.  But over time, I came to a personal belief that most of the research connected to prevention or cures for these diseases was likely to drift away, and not prove to result in productive science-based changes in the near future.  Thus, most of my research time in aging has focused on issues about care (both healthcare and social care), finances, and access to justice issues, for both affected individuals and their families and caregivers.  There is plenty to keep a law-related researcher on aging busy with this focus. 

As I grow older, and as the heritage from my own family suggests Alzheimer's or related disorders will affect my generation directly, I do find myself looking more carefully at claims about scientific  breakthroughs on prevention or treatment.  My Fulbright scholarship time in the Fall of 2024 allowed me to do a lot of catching up on science-based developments. For example, my news feeds began sending me regular updates on potential drug interventions for a variety of age-related diseases, including diseases of the brain.   As I'm not "in" science research per se, I knew I was likely hearing only part of the science research picture, but the news was intriguing. Who doesn't hope for breakthroughs that mean you may be able to avoid losing essential cognitive functions, especially the ability to think and communicate clearly?  For example, one of my long-standing concerns is about financial exploitation of older adults.   Therefore, an area of science-research that caught my attention is about studies suggesting that a measurable loss of "entorhinal cortex thickness" may be a factor in financial vulnerability in "cognitively unimpaired older adults."  Similarly, it is exciting to hear that my own state of Pennsylvania is committing real dollars in a bipartisan focus to address "Alzheimer's, dementia and related disorders." 

Then the most recent sobering news items about science-based research interrupted my work, including:

• Articles focusing on problems arising in drug-trials testing potential medications aimed at intercepting the progress of Alzheimer's Disease.  For example, see The New York Times article by Walt Bogdanich and Carson Kessler that appeared originally on October 23, 2024 on "What Drugmakers Did Not Tell Volunteers in Alzheimer's Trials" about their susceptibility to brain injuries -- including brain bleeds or brain swelling that could lead to death -- while participating in testing.  
• The New York Times Opinion piece on Sunday, January 26, 2025, describing what the featured author, Charles Piller, calls a "legacy of lies" in Alzheimer's science. See the electronic copy of  "The Devastating Legacy of Lies in Alzheimer's Science" at  https://www.nytimes.com/2025/01/24/opinion/alzheimers-fraud-cure.html, which was also published as the lead story in the Sunday, January 26, 2025 print edition. 

 I have yet to see responsive commentary from the science researchers.  But, as a law-related researcher, here are some of the implications I can see from emerging news about  "mishandling" of the research connected to the causation and prevention of Alzheimer's and related diseases:

A.  Lawsuits.  Of course.  Sadly so. 

B.  According to articles on drug trials for an experimental Alzheimer's drug known as BAN2401, there are indications that volunteers were told that certain genetic profiles might predispose people not only to Alzheimer's Disease, but also to brain injuries from the drugs, and yet participants may not have been told the results of testing on whether they had the risk-related genetic factors.  Such a non-disclosure practice raises legal concerns about whether there was "informed consent" by or for individuals entering the trials.  How did this happen?   

C.   In the most recent piece linked above, the author has indicated that a huge swath of formal research on Alzheimer's causation and treatment is flawed.  The author indicates that a "team of brain and scientific imaging experts" helped him analyze "suspicious studies by 46 leading Alzheimer's researchers." Further, he says that "the experts identified nearly 600 dubious papers from the group that have distorted the field -- papers having been cited some 80,000 times in the scientific literature."  Certainly this description would seem to carry significant concerns about the accuracy of the research. But, from a legal standpoint, it also suggests that findings may lead individuals, families, caregivers, government entities, and potential funders, to be more likely to disengage from science-based analysis of brain function, treatment and care protocols for these admittedly complex diseases.  How will this research community establish reliable databases for the future? How does one trust new pathways for research, including the possibility of alternatives to the "amyloid hypothesis" for causation of Alzheimer's?  One funding argument is to focus more on encouraging "healthier" lifestyle choices and behavior-modifications, but is that enough incentive if there is no "real" documentable hope of a better outcome? 

Such indications of bad research at a core level also play into the hands of a new national Administration that seems eager to dump and defund traditional science. 

The essential problem is that we need more engagement, not less, to truly have a hope of making society healthier, safer and better able to support dignity as we age.  

Thinking About Navigation Tools for Individuals, Families and Caregivers with Questions about Alzheimer's, Dementia or Related Disorders

Having returned this month to Pennsylvania following a wonderful experience as a visiting Fulbright Scholar at the University of Ottawa in Canada, I'm digging into the next part of my ongoing research. I have a lot to think about, having been inspired by more than 35 interviews or presentations I observed during my four months in Canada.

Law professors, especially those involved in public outreach projects, tend to attract "questions" from the public.  Most of the callers who reach out to me stop short of asking for legal advice. In fact, I've realized that most of the inquiries I receive are from people asking, "What do I do next?"  They are seeking practical guidance. 

I actually had more time than usual to listen to some of these informal inquiries while in Canada.  I'm always careful to clarify that I cannot and do not give legal advice when contacted in this manner.  At the same time, I usually learn that the questions are often more of the "how to do I find the right advice and is it even legal advice I need?" variety.  Examples:

• One call was from a husband and wife who were seeking to understand and manage the financial consequences of a senior living contract they had signed.  Both halves of the couple had been diagnosed before signing the contract with "early" stages of dementia. As it turned out, the wife had no true understanding of the contract and was refusing to "go."  This call involved multiple states, and "choice of law" questions.
• One call was from an attorney who was asked by neighbors and family members of an older person to assist an older person who seemed to be struggling financially, possibly because of third-party exploitation.  The facts were complicated, but the attorney was calling because the living situaton, though far from ideal, might be with the "consent" of the individual. 
• One call came after a Fulbright presentation I gave at the University of Ottawa where I explored the question of "Protection versus Autonomy" when facing concerns for older people -- or sometimes involving similar questions from adults who are "younger." The caller this time was concerned that clear wishes of an adult family member regarding "end of life" were being ignored by an appointed guardian.   

From my earlier work as the founder of an Elder Protection Clinic for Penn State Dickinson Law,  I recalled that we would often begin any responses to such questions from actual clients in a "step-by-step" fashion, such as:

A. Is there a threshold need for a "safer" setting for the person under consideration?  If so, what options exist?

B. Is there the potential that that impaired cognition is a reason for the person to be unable or unwilling to take self-protective actions?  If so, is there a need and an option for the person's capacity to be evaluated?

C. If a longer term plan is needed, are there "legal" components to the plan, and do those legal components benefit from medical or social supports?  If so, what accessble options exist for the person in need?  

When considering these calls while I was in Canada, I realized I was already seeing a new generation of relevant navigation tools under development in Ontario. For example, I learned about "apps" that provided navigation suggestions for individuals with heart conditions, or cancer, or Parkinson's Disease. The experts making the presentations were deeply impressive.  Many of these "path-finding" apps were directly tied to answers supported by Artificial Intelligence (AI). 

On the other hand, my observation is that most of these "apps" were "just" medical, or "just" social services in nature.  Would it be possible to design a broader-based "App" for older individuals, their families and their caregivers that can offer a wider array of possible approaches, including law-related options?  Jokingly, I ask myself, can AI help me "clone" myself and clone other people who serve as navigator tools in age-related fact patterns? Can an individual U.S. state -- Pennsylvania? -- be a leader in creating a jurisdiction-specific format?  

That's part of what I'm thinking about now, as I continue my Fulbright Fellowship research, with the inspiring examples provided in Canada, and especially with examples coming directly via my hosts at the uOttawa Center for Health Law, Policy and Ethics. Thank you, Director Vanessa Gruben and Associate Director Dina Idriss-Wheeler! 

Feel free to send me your own thoughts (probably best to do so via email as the "comment" function on this website is quirky).  

Bruyère Health and uOttawa: Imaging a Future Without Disability or Dementia?

On November 28, 2024, I was giving "thanks."  Less because it was Thanksgiving Day in the United States, but more because I was witnessing a fascinating day of health-related research reports by individuals and teams connected to Bruyère Health Research Institute in Ottawa, Canada.  Dr. Kumanan Wilson, CEO at Bruyère, made my attendance possible, and it was an inspiring day, hosted at the Canadian Museum of Nature.  Presenters were asked to frame remarks in the context of "Imagining the Future...."  And the most interesting questions asked us to "imagine the future without disabilities or Alzheimer's Disease." 

Some of the highlights of the packed program:

• Keynote speaker Dr. Claire Kendall, Associate Dean, Social Accountability, uOttawa, who describes herself as a practicing family physician as well as researcher, and who was imaging a future where local data transforms the health care of both patients and communities.  She explained the research underway to track avoidable deaths, as well as information showing inequities within and between neighborhoods in terms of access to housing, food banks, COVID-19 care, and in-person primary health care.  I was especially intrigued by the Ottawa Neighbourhood Study Project.  
• "Snapshot" Speaker Sessions, often with graduate students making the presentations.  For example, several studies are looking at what patients say about why they use hospital Emergency Rooms rather than primary health care doctors for "routine" care needs.  These interviews are helping to create "collaboration" among different community venues, including libraries and food stores, to make health care access easier, including "pop-up" health clinics.    
• Poster programs that provided me with my first introduction to "social prescribing pathways," especially for older people.  
• Learning more about technology advances, including the "Kira" project that uses virtual reality to create conversation opportunities for people with dementia.  
• Keynote speaker Dr. Andrew Frank, a neurologist and investigator with the Bruyère Memory Program and a professor at uOttawa.  Dr. Frank asked us to consider how it is that Alzheimer's disease continues to devastate individuals without us taking action. He said, "Alzheimer's Disease 'deserves' a response."  Dr. Frank outlined the latest work on biomarkers and the possibility of simple blood tests.  He explained the "gut microbiome project," enhancements for "Smart Homes," and safety adaptations for driving.  He talked about the challenges of promising drug trials for treatment (not cures) for Alzheimer's -- and he was frank about the ways in which Canada can and should play important roles in future research.

I have the feeling I might have been the only law professor in the room.  But, I also suspect I'll be inviting many of these researchers to future conferences "for" lawyers and law professors!  

Presenting to uOttawa on "The Challenges of Advancing Effective Justice for Older People"

I'm laughing as I type this post today, because it is snowing in Ottawa.  The photo here was taken while crossing my favorite bridge over the Rideau Canal on the way to the University of Ottawa, just as the snow is getting started today. 

This is the first time it has snowed while I've been in residence as a Fulbright Research Scholar at the University of Ottawa.  So. of course, it is snowing as I'm scheduled to make a live presentation today on behalf of the LIFE Research Institute and the Centre for Health Law, Policy and Ethics on campus at uOttawa.  Fortunately, there is a live-streaming option for attendees.  

To say this entire semester has been a wonderful gift to me from my hosts at Fulbright and uOttawa is an understatement.  I have many people to thank!  But, first, in case you want to see the slides I will use to keep myself on track while speaking today, here is a link.

I'm looking forward to using what I'm learning at uOttawa in my future research and publications.   So, stay tuned!  

uOttawa Report: Dynamic Programming on "Governing Reproduction" at Centre for Health Law, Policy and Ethics

One of the perks of a Fulbright Fellowship is the opportunity to attend conferences that introduce you to new topics, outside of your traditional research areas, and which stimulate new thinking even in your traditional areas.  That happened to me this week while attending a conference with the title Governing Reproduction, sponsored by the University of Ottawa's Centre for Health Law, Policy and Ethics, which is also the host for my Fellowship.   The two-day program has included a wide array of cutting edge issues such as access to abortion and contraceptives, health care for indigenous women during and following giving birth, health care funding, legislative initiatives and more.

I was very interested to hear an especially persuasive presentation on the topic of abortion law by Joanna Erdman, Professor of  Health Law and Policy at Dalhousie University.  Professor Erdman approached the topic of regulation from the perspective of health care as a public right, and the need for public spaces to access such care. She connects the need for a functioning means of abortion care in a public space to the need for security, privacy and dignity.  Intriguing. It made me think about an issue I've been watching from Ottawa play out on the evening news in nearby Buffalo, New York, where the community is facing the closure of a long-standing and respected local nursing home, triggering public outcry as this will affect 100+residents and more than 300 jobs.  The closure is triggered by inadequate public and private  funds to keep operating.  Public nursing homes are at risk of "failing" all over the United States.  

On the second day of the conference, the panel on surrogacy captured my attention. 
In Canada, federal law makes it illegal to "pay" surrogates or to pay certain intermediaries, sometimes called surrogacy agencies or brokers, for "matching" potential parents with potential surrogates.  But despite that federal law, more than a dozen surrogacy agencies are operating in Canada, sometimes appearing to avoid federal attention by taking the position they are not charging for "matching" but rather for "other" services needed by the parties to the contract during the gestational period. 

The speakers on potential regulatory issues for surrogacy arrangements included Vanessa Gruben, Professor of Law at uOttawa and also the Director of the Centre for Health Law, Policy and Ethics,  Stephanie Carsley, Professor of Law, uOttawa, and Alicia Czarnwoski, a PhD candidate at uOttawa who spoke about her survey of the operators of commercial ventures involved in facilitation of surrogacy. Isabel Côté, Canada Research Chair in Third-Party Reproduction and Family Ties from the University of Quebec, also spoke about her research into reactions of family members to the roles of surrogates.  

Of course, all of that got me thinking, especially when I heard that some 40% of surrogacy contracts in Canada may involve intended parents from outside of Canada.  I'm teaching Conflict of Laws when I return to Penn State Dickinson Law in January.  Heads up to my students!  You can expect a cross-border and federalism fact pattern between U.S and Canada in the realm of surrogacy!  What jurisdiction's law controls if a contract issue arises?  If tort issues arise? If  "fraud" exists?  

New York CCRC Residents Struggle for Fair Outcome in Bankruptcy Proceeding

As regular readers will know, I am a long-time "student" of senior living options generally, and Continuing Care Retirement Communities (CCRCs, also sometimes called Life Plan Communities) specifically.  I believe that a well-run CCRC is a beauty to behold -- and for more than 20 years I've been hearing from residents who have convinced me that CCRCs can offer a dynamic opportunity for aging in the right place, in the right ways.

At the same time, in the instances where a CCRC becomes insolvent, especially if the CCRC is in bankruptcy court, residents may rightly be frightened.  

In Port Washington, New York, one CCRC has had a particularly long and frustrating history.  The Harborside (formerly Amsterdam House Continuing Care Retirement Community, Inc.) has hoped to find a new operating group, one capable of overcoming more than 10 years of economic ups and downs, and one with the resources and experience needed to turn around the declining occupancy ratio.  My review of the pleadings makes it clear to me that many current residents have paid large entrance fees ($700k+), fees that were marketed, at least in part, as "refundable."   But the strongest bidder that was promising to honor refundable fee contracts on certain terms, Life Care Services, has pulled out of the bidding.  The bankruptcy court and the New York regulators for CCRCs (which includes the Department of Health) are now facing creditor claims from the full gamut of service industry providers, creditors who have priority over the residents. These priority creditors stand to lose more "if " the residents are promised more by a successor owner.  Lots of tough math for business interests, the regulators, and the court in this fact pattern.  But delay makes the possibility of a solution harder with every day that passes.  

At the same time, this segment of the senior living industry does not look good, when the very reason for the existence of CCRCs -- to provide a safe place for all levels of care for the residents' remaining lives -- is challenged.   Residents "bought into" CCRC living because of promises made or implied throughout the marketing phases of the CCRC-Resident relations.  But refundability of entrance fees, the availability of phased care, unique on-property services, and the simple "existence" of the community as something other than an apartment complex are at risk in this kind of a long-running history of insolvency.  Tough choices for residents, too.  

There is a big court hearing scheduled for November 20.  It will be interesting to see if some solution emerges.  

As I read about this history, I keep being reminded of other tough insolvencies for CCRCs and other forms of senior living.  Residents of CCRC rely on the actual and implied promises of financial stability of their communities.  Reliance is a hallmark element of fiduciary duty law, which is separate from and, perhaps above, contract law.  

What's in a Name? That Which We Call a Home for the Aged, Would it Smell as Sweet?

I am currently working on a project where a proper title for "homes for the aged" is a topic of debate. 

I've been amused by attempts to tackle this topic over the years.  For example, I discovered that in 1948, readers of the Kensington News in the Notting Hill area of London -- yes, that Notting Hill -- were enlisted to make suggestions for a new name for a local "Home for the Aged Poor."  The solicitation was suggested by a mayor who remarked after "seeing the happy contented faces of the inhabitants and the light and cheerful premises," that a better name was needed and he offered to "award a guinea book-token for the best suggestion received."  

Readers took to the task with apparent zeal.  My research has not yet revealed the winner, but each week the newspaper ran multiple suggestions -- ranging from quirky to, I assume, ironic in nature.  Some of my favorites?  

"The Anchorage."  "Dunromin,"and  "The Welcome Home." 

The most common suggestion that I read in one week's list seemed to be variations on "Twilight" -- but back then there was no connection to the teen-vampire romance series of book and movie fame that might have at least lightened that identity.  

Okay -- time to get back to my Fulbright project.

Canadian Province Begins Permitting "Advance Requests" for Medical Assistance in Dying

In a first for Canada, the province of Quebec last year enacted a law permitting "Advance Requests" for Medical Assistance in Dying (MAID). Quebec delayed implementation of the law to permit the federal government to amend the Canadian criminal which restricts MAID to instances where the person making the request still has "capacity" immediately before the action is to be taken.  But effective on October 30, 2024, Quebec announced that despite no action at the federal level, it would begin the approval process for Advanced Requests immediately, deemed to be supportive of the wishes of people with degenerative cognitive conditions, including Alzheimer's.  

Following the announcement, the federal Minister of Health says Ottawa will not be contesting advance MAID requests in Quebec despite the conflict with federal criminal law.  CBC News reports the federal government says it "will launch a countrywide consultation on the issue next month, with a report set to be published in March 2025."

As a U.S. outsider watching this play out, the Quebec decision also appears to me to reflect growing political tensions, including those who are pressuring Prime Minister Justin Trudeau to grant their various demands, such as demands for increases in federal funds flowing to provincial projects, as the price to pay for any ongoing support for his national leadership position. 

Filial Friday: Modification of Pennsylvania's Filial Support Law Passes House Unanimously

As long-time readers of this Blog may be aware, Pennsylvania is one of the few U.S. states that still has an active "filial support" law that can sometimes be used to compel adult children to "care for and maintain or financially assist" an "indigent" parent.  23 Pa.C.S. Section 4603 (a)(1).  The Pennsylvania Legislature raised the profile of a somewhat dormant, but long-standing Colonial era statute, by moving it from Welfare laws into the Domestic Relations laws in 2005.  On October 24, 2024, the Pennsylvania House of Representatives unanimously approved changes in the law, and sent the proposed amendments on to the Pennsylvania Senate.  See Pennsylvania House Bill 2094 (Printer's No. 2678).  

A bit of background helps.  Most of the modern Pennsylvania disputes -- from approximately 1995 to present -- have been in the context of costs for care for a parent in a nursing home, where the parent has been found to be ineligible for Medicaid benefits (known as "Medical Assistance" in Pennsylvania) for long-term care.  And the most compelling cases for such a result are where the targeted adult child has misused the parent's financial resources.  For example, in one well known case, the adult daughter used a Power of Attorney to admit her mother to the nursing home, but also to gift herself with over $100,000 from her mother's bank accounts, triggering her mother's ineligibility.  Presbyterian Medical Center  v. Budd, 832 A.2d 1066 (Pa. Super Ct. 2003).

However, more controversial cases have also arisen. For example in 2012, an adult son was found liable for his mother's nursing home care, but without any allegations that he was engaged in self-dealing or deceptive behavior towards the nursing home.  See Health Care & Retirement Corp. of America v. Pittas, 46 A.3d 719 (Pa. Super. Ct. 2012).  

There have been multiple attempts to repeal Pennsylvania's filial support law, but most have stalled in a committee without any action.  The latest bill, with unanimous support in the Pennsylvania House, appears to have "legs."  The key change is that rather than an entire repeal of the law, the grounds for liability would become more narrow:  someone asserting a family member's liability for care would have to allege and prove that family member either personally took or benefited from non-exempt transfers during the last five years OR was someone who “does not cooperate with the [Human Services] department, a nursing facility, a provider or other person in the medical assistance eligibility process.”   

Democrats were the sponsors of HB 2094 in the Pennsylvania House, and the Pennsylvania Senate is currently controlled by Republicans (all of which "could" change along with much more in the next election).  But, the fact that the vote on the House bill was unanimous (with one member abstaining) suggests to me there has been a lot of hard work by both parties to get this law into a shape where they can agree.

Can Careful Structuring of a Business Impact Accountability for Quality of Patient Care in Nursing Homes?

I have long been concerned about how quality of care in nursing homes and other long-term care enterprises can be negatively impacted by ways in which daily operations are funded, staffed, supervised, and reported in certain types of enterprises, and especially within certain types of corporate "structures."  I'm not the only one worried about accountability -- and the worries are only becoming more intense the more I talk with individuals, families and their representatives. 

In November 2023, the U.S. Office of Behavioral Health, Disability, and Aging Policy issued a report focusing on several key factual findings from a study of for-profit nursing homes over a multi-year period, from 2013 to 2022:

• The report opened with background facts:  "The nursing home sector has been predominantly for-profit for decades with  approximately 69% of nursing homes owned by for-profit operators. In addition to lower occupancy rates and higher percent Medicaid financing, for-profit facilities generally have been found to have lower staffing and worse
  quality of care."
• Further, the structures of such enterprises have become more complicated, or as the report summarized: "Moreover, the role of complex ownership structures and their relationship with quality of care has become a growing policy concern. Driven by liability trends, financial pressures, and profit seeking, nursing home assets have become increasingly complex as private equity (PE) and real estate investment trust (REIT) entities have pursued investments in the sector."
• The report noted that with private investors, the likelihood of worse outcomes for patients increased:  "In our difference-in-differences analyses examining the impact of PE and REIT investment in nursing homes, we find that PE investment results in a 12% relative decline in registered nurse (RN) hours per resident day (HPRD) compared to other for-profit facilities and a 14% relative increase (i.e., worsening) in their deficiency score index. We see a similar pattern for REIT invested facilities, with a 7% relative decline in RN HPRD and a 14% relative increase in deficiency score index." 

Thus, recent research demonstrates the potential for reduced quality of care, where nursing homes are run by enterprises that seek to increase or even maximize "profit" for investors. 

During the last year, I've been following what appears to be an important case involving a variation on concerns about corporations involved in long term care. 

The case involves two levels of corporate involvement, called in this particular instance, "operating" companies and "management" companies.  In addition, while the patient was in residence at the particular nursing home in question, the ownership changed -- from one "set" of management/operating companies, to a different "set" with the  same structure.  In the old days, we would often analyze the case to see whether there were grounds to  "pierce" the corporate veil of what was, in fact, a parent/subsidiary relationship.  But, here, the management companies argue they are entirely separate enterprises with no day-to-day responsibilities for operation.  

In the case captioned Newlin et al  v. Vita Healthcare Group, et al., now going up on appeal to the Superior Court, a key issue arises from the decision of the trial court to grant post-trial relief by dismissing all claims against the two "management" companies that were found by the jury to be 65% at fault for the death of a 70 year-old patient in the for-profit nursing home.  Only the "operating" companies -- arguably under-insured and owning few assets --  were left to shoulder liability, but they were found by the jury to be only 35% at fault for the resident's injuries and death. 

Is this outcome proper as a matter of corporate law?  Is it an outcome that further incentivizes companies to create a whole new level of complexity in structures, so as to allow upstreaming of income -- the "profit" -- while insulating the "management" company from accountability for their management services?   Is this decision a proper reading of prior Pennsylvania corporate case law, especially a line of cases that includes Scampione v. Highland Park Care Center LLC, 57 A.3d 582 (PA 2012) (remanding case to determine whether both management company and nursing home operating company were liable, requiring review of evidence about the resident-entity relationships).  

There is more to this story -- and more to come here.

Visiting in Canada as a 2024-25 Fulbright Fellow at University of Ottawa

I'm catching up on my blogging life after an especially busy summer, which included a horseback riding adventure with a dear friend  from New Mexico, Deborah Walker, along the Ring of Kerry in County Killarney, Ireland.  We enjoyed every moment!

Now I'm in Canada as a visiting 2024-25 Research Chair in Health Law, Policy and Ethics at the University of Ottawa's Center for Health Law.  This is my second career opportunity to "visit away" under the auspices of a Fulbright Fellowship program and it is wonderful to experience new places, new ideas, and new people.

My start on the Fulbright was a little delayed -- because of a late summer horseback riding accident (although, thankfully that accident did NOT take place in Ireland), as I managed to break my arm and bruise a few ribs when my horse fell unexpectedly,  sending us both to the ground from a canter. 

I must admit -- after a lifetime of riding both horses and bicycles for long distances in new places with a few tumbles along the way  -- you would think I "knew" better than to jump at the chance to ride one more "new" horse who had arrived in the barn just a few days before my original planned departure for Canada.  Whoops!  The ER, a  cast, a bit of surgery and lots of physical therapy and I'm back on a good path.  This is my first time blogging with both hands on the keys since the tumble.

I've been fascinated by the University of Ottawa programming I'm witnessing.  I chose Canada -- and specifically Ottawa -- because I wanted to take time to experience the nation's capital, and take a close look at Canada's  health care program and approaches to aging issues.  So far, I've already sat in on presentations on a range of health-related subjects, including a book launch on September 25 of Pandemics, Public Health, and the Regulation of Borders. 

The multi-author approach provided important contrasts on the question of what does it mean to keep vulnerable populations safe in the face of a global health care crisis, while still being "good national citizens" of the world.  Colleen Flood, recent Director of UOttawa's Center for Health Law and now the Dean of  Queen's University Faculty of Law and a co-editor of the Routledge Press (open access) book, led off the discussion that centered on COVID-19, by comparing New Zealand's locked border approach with the attempts of both Canada and the United States to limit travel (and thereby reduce transmission of disease) while still permitting open borders to facilitate economic transactions, including movement of needed supplies.  I was especially interested in the presentation of Kumanan Wilson, a physician and scientific leader with the Bruyère Research Institute, who provided a brief history of the science of "vaccine passports," including the need for stable, reliable sites for digital information.  (Did you lose track of your paper vaccine card(s))?    

Stay tuned!  More reports to come!

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.