Elder Law Prof Blog

Facts about persons with disabilities in the US

Population Distribution

41.2 million
Number of people who have some level of disability. They represent 15 percent of the civilian noninstitutionalized population 5 and older.

By age —

• 6 percent of children 5 to 15 have disabilities.
• 12 percent of people 16 to 64 have disabilities.
• 41 percent of adults 65 and older have disabilities.

Source: 2007 American Community Survey <http://factfinder.census.gov>

15%
Percentage of females with a disability, compared with 14 percent of males.
Source: 2007 American Community Survey <http://factfinder.census.gov>

Using or Needing Assistance

11 million
Number of disabled people 6 and older who need personal assistance with everyday activities. This group amounts to 4 percent of people in this age category. These activities include such tasks as getting around inside the home, taking a bath or shower, preparing meals and performing light housework.

3.3 million
Number of people 15 and older who use a wheelchair. Another 10.2 million use an ambulatory aid such as a cane, crutches or walker.

Specific Disabilities

1.8 million
Number of people 15 and older who report being unable to see printed words at all or were blind.

1 million
Number of people 15 and older who reported deafness or being unable to hear conversations at all.

2.5 million
Number of people 15 and older who have some difficulty having their speech understood by others. Of this number, 431,000 were unable to have their speech understood at all.

16.1 million
Number of people with limitations in cognitive functioning, or who have a mental or emotional illness that interferes with daily activities, including those with Alzheimer’s disease and mental retardation. This group comprises 7 percent of the population 15 and older. This included 8.4 million with one or more problems that interfere with daily activities, such as frequently being depressed or anxious, trouble getting along with others, trouble concentrating and trouble coping with stress.

On the Job

13.3 million
Number of 16- to 64-year-olds who reported a medical condition that makes it difficult to find a job or remain employed. They comprise 7 percent of the population this age.

46%
Percentage of people 21 to 64 having some type of disability who were employed in the past year. The rate ranged from 75 percent of those with a nonsevere disability to 31 percent with a severe disability. For those without a disability, the employment rate is 84 percent for the same period.

59%
Percent of people 21 to 64 with difficulty hearing that were employed. The corresponding percentage for those with difficulty seeing was 41 percent.

48%
Percentage of people 21 to 64 with a nonsevere disability who work full time. This compares with 63 percent without a disability and 16 percent with a severe disability.

Income and Poverty

$2,250
Median monthly earnings for people 21 to 64 with a nonsevere disability. This compares with $2,539 for those with no disability and $1,458 for those with a severe disability.

$2,252
Median monthly earnings for people 21 to 64 with difficulty hearing. The corresponding figure for those with difficulty seeing was $1,932.

12%
The poverty rate for people 25 to 64 with a nonsevere disability. This compares with 27 percent for those with a severe disability and 9 percent of those without a disability.

Serving Our Nation

$28.2 billion
Amount of compensation veterans received for service-connected disabilities in fiscal year 2007.
Source: Statistical Abstract of the United States: 2009, Table 505 <http://www.census.gov/compendia/statab/>.

Accommodations

98.5%
Percent of transit buses that were ADA lift- or ramp-equipped, as of 2006. This represents an increase from 61.7 percent in 1995.
Source: Statistical Abstract of the United States: 2009, Table 1075 <http://www.census.gov/compendia/statab/>.

Unless otherwise indicated, all the data are from the Americans with Disabilities: 2005 report at
<http://www.census.gov/Press-Release/www/releases/archives/income_wealth/013041.html>.

Recent SSRN Papers about Grandparent Visitation

Supporting the Covenant: Family and Community Table of Contents and Introduction

Margaret F. Brinig
Notre Dame Law School



SUPPORTING THE COVENANT: FAMILY AND COMMUNITY, University of Chicago Press, 2010
Notre Dame Legal Studies Paper No. 09-26

Abstract:     
This book will discuss the interplay of norms and families from a number of perspectives. It will tie theoretical and empirical observations to subjects of current law reform as varied as cohabitation, custody, grandparent visitation, payment for household work and domestic violence. Relevant norms and what is called social capital affect family members’ relationships with each other, that is, within the family community. They also govern the way outside communities interact with families, and social capital built within the family influences commercial and public relationships that do not directly involve families at all. Law reform, even from the best of intentions, often misfires because norms and the impact of social capital are not considered.

Keywords: family, law and economics, law and society, social norms, social capital, empirical studies, marriage, adoption, domestic violence

Accepted Paper Series

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400913

Recent SSRN papers about Powers of Attorney

The Uniform Power of Attorney Act: New Solutions to Old Problems

Gerry W. Beyer
Texas Tech University School of Law



Estate Planning Studies, 2009

Abstract:     
This article examines some of the provisions in the 2006 Uniform Power of Attorney Act and how they attempt to meet some of the challenges that durable powers face with a focus on formalities in drafting, standards of conduct for an agent, an agent's powers and authority, and overcoming the dishonoring of the document.

The UPOAA does an admirable job of modernizing power of attorney law to reflect legislative trends and collective best practices. The enhancements should facilitate the acceptance of durable powers and make it more difficult for devious individuals to abuse the powers. The Act, however, is not the "end all" of power of attorney practice, and thus the practitioner must be vigilant to ascertain the principal's desires, consider the applicable law and facts, and then customize the power to meet the client's needs.

Keywords: power of attorney, agent, principal, Uniform Power of Attorney Act, disability planning

Accepted Paper Series

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396502

AoA’s National Center on Elder Abuse Launches Movie Theater Elder Abuse Awareness Message

As part of the Administration on Aging’s (AoA) ongoing recognition of Older Americans Month, Acting Assistant Secretary for Aging Edwin L. Walker today announced that beginning May 22 through June 18, 2009, AoA’s National Center on Elder Abuse (NCEA) will run a 15-second elder abuse information piece on approximately 700 movie screens in 27 major metropolitan areas throughout the United States. This is the first time that one unified message regarding elder mistreatment will be echoed simultaneously throughout the country.

In a brief video that will appear before movie trailers and previews, actor William Mapother of the television show “Lost” asks viewers to “Join Us in the Fight Against Elder Abuse.”  NCEA created the “Join Us” campaign as part of the first-ever national effort to raise awareness of elder abuse, neglect, and exploitation.  

"Our older Americans deserve our respect and honor, not abuse and neglect," HHS Secretary Sebelius said. "This landmark awareness effort will help us focus on an important issue that has received far too little attention.  Public awareness is a significant first step toward reducing the abuse, neglect, and exploitation of seniors." 

As part of this coordinated effort, the NCEA is building upon its “Join Us” theme by asking community organizations and the public to carry out simple activities that can address elder abuse in their communities. AoA’s national network of community-based aging organizations plays a critical role in ensuring that older Americans remain independent, healthy, and safe in their homes and communities for as long as possible. However, the independence of many seniors is limited by abusive situations ranging from financial exploitation to severe neglect.                  

“Each year, hundreds of thousands of older persons are abused, neglected, and exploited; yet, only about one in five of those crimes is ever discovered,” said Acting Assistant Secretary Walker. “The NCEA’s sobering message, to be viewed by millions in theaters across our country over the next four weeks, is an opportunity to shed light on the tragic problem of elder abuse and perhaps save lives.”

Another opportunity will occur on Monday, June 15, 2009, which is the annual acknowledgement of World Elder Abuse Awareness Day, when communities worldwide are holding events to recognize the problem of elder abuse, neglect, and exploitation.

The NCEA is a national resource center dedicated to the prevention of elder mistreatment, and operates as a multi-disciplinary consortium of collaborators with expertise in elder abuse, neglect, and exploitation.  Current grantees of the NCEA are the National Adult Protective Services Association, the National Committee for the Prevention of Elder Abuse, and the University of Delaware’s Center for Community Research and Service. 

The elder abuse information piece that will be seen in theaters starting tomorrow was produced for the NCEA by the University of Delaware, a leader in elder abuse information and prevention efforts for over 20 years. The State of Kentucky Cabinet for Health and Family Services also played a vital role in securing the services of Mr. Mapother and producing a series of public service announcements upon which the elder abuse information piece is based. 

To learn about the location of the theaters where the elder abuse informational piece will run, visit:
http://www.ncea.aoa.gov/Ncearoot/Main_Site/pdf/publication/NCEA_movie_theater_info_piece_list.pdf

For more information about the NCEA “Join Us” campaign, visit:
http://www.ncea.aoa.gov/NCEAroot/Main_Site/About/Initiatives/Join_Us_Campaign.aspx . You may also contact the NCEA by e-mail ([email protected]) or by phone (302-831-3525) to learn more about other public awareness activities. 

USA Today opinion piece advocates publicly financed LTC insurance

Here's an excerpt:

"Congress and President Obama could create a system of universal long-term care insurance, built on a combination of public and private coverage. They could end the reliance of millions on the welfare-like Medicaid system while reducing the tremendous pressure that program is putting on both state and federal budgets. And, they could further shift the focus of long-term assistance to community care instead of nursing facilities.

But sadly, there is a real risk that millions of the frail elderly and disabled like Natalie will be forgotten. While lawmakers are focused on expanding insurance to cover acute care — such as visits to doctors and hospitals — they are largely ignoring those chronically ill who need mostly personal assistance rather than high-tech medicine.

This is how strange the system is: If you are 65 or older and suffer a heart attack, Medicare will spend tens of thousands of dollars to perform life-saving surgery. But if you are living with congestive heart failure — among the most common diseases of the elderly — you are largely on your own. That's because there is no aggressive treatment for most heart failure patients. More than anything, they need help getting through the day.  And Medicare won't pay for that.

It is the same for those with Alzheimer's or Parkinson's, and for younger people with disabilities who might be living with diseases such as multiple sclerosis, or with traumatic brain or spinal chord injuries. Unless they are impoverished and eligible for Medicaid, they get little government help."

Read the full article:  http://blogs.usatoday.com/oped/2009/05/what-about-long-term-care.html

Minnesota legislature enacts Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

See text of bill as signed by the governor here:

https://www.revisor.leg.state.mn.us/laws/?id=46&doctype=chapter&year=2009&type=0

Breaking news: Sotomayer will be nominated to US Supremes

President Barack Obama tapped federal appeals judge Sonia Sotomayor for the Supreme Court on Tuesday, officials said, making her the first Hispanic in history picked to wear the robes of a justice.  If confirmed by the Senate, Sotomayor, 54, would succeed retiring Justice David Souter. Two officials described Obama's decision on condition of anonymity because no formal announcement had been made.  Administration officials say Sotomayor, with 17 years on the bench, would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.  A formal announcement was expected at midmorning.  Obama had said publicly he wanted a justice who combined intellect and empathy — the ability to understand the troubles of everyday Americans.

While Republican critics chafed at that, Democrats hold a large majority in the Senate, and barring the unexpected, Sotomayor's confirmation should be assured. If approved, she would join Justice Ruth Bader Ginsburg as the second woman on the current court.  In one of Sotomayor's most notable decisions, as an appellate judge she sided last year with the city of New Haven, Conn., in a discrimination case brought by white firefighters. The city threw out results of a promotion exam because too few minorities scored high enough. Ironically, that case is now before the Supreme Court.

Source:  AP/Comcast, http://www.comcast.net/articles/news-general/20090523/US.Obama.Supreme.Court/

Not elder law: British couple celebrates 81st wedding anniversary today

 Britain's longest living married couple have celebrated their 81st wedding anniversary.  Frank and Anita Milford, who live together in a nursing home in Plymouth, Devon, exchanged vows on 26 May, 1928.  The Milfords were married in 1928 - the year penicillin was discovered   Frank is 101 and Anita will be 101 next month. In February they will break the record to become the longest married couple in Britain.
They say they still have little arguments, but will always have a kiss and cuddle before they go to bed.  The pair, who said there was no "magic secret" to a happy marriage, met at a YMCA dance in the St Budeaux area of Plymouth in 1926 and were married two years later at Torpoint register office.

Source/more:  http://news.bbc.co.uk/2/hi/uk_news/england/devon/8067752.stm

GAO issues report on home dialysis covered by Medicare

Why GAO Did This Study

Medicare covers dialysis—a process that removes excess fluids and toxins from the bloodstream—for most individuals with end-stage renal disease (ESRD), a condition of permanent kidney failure. Most patients with ESRD receive dialysis in a facility, while some patients with ESRD are trained to self-perform dialysis in their homes. The Centers for Medicare & Medicaid Services (CMS)—the agency that administers the Medicare program—has taken steps to encourage home dialysis and is in the process of changing the way it pays for dialysis services. Effective 2011, CMS will pay for dialysis services using an expanded bundled payment.

The Tax Relief and Health Care Act of 2006 required GAO to report on the costs of home dialysis treatments and training. GAO examined (1) the extent to which the costs of home dialysis differ from the costs of dialysis received in a facility, and (2) CMS’s plans to account for home dialysis costs in the expanded bundled payment. GAO obtained information from CMS, the U.S. Renal Data System, ESRD experts, and self-reported cost information from six dialysis providers.
What GAO Recommends

GAO recommends that CMS establish and implement a formal plan to monitor the expanded bundled payment system’s effect on home dialysis utilization rates. CMS agreed with GAO’s recommendation.

Full report:  http://www.gao.gov/new.items/d09537.pdf

Wake Forest Elder Law Clinic spring newsletter now online

Get it here:  http://law.wfu.edu/clinics/elder/documents/E-ClinicNews-April2009.pdf

First WA Death with Dignity patient exercises her rights

A 66-year-old US woman with advanced cancer has become the first person to die under a new aid in dying law in Washington State.  The woman, Linda Fleming, died on Thursday night after taking drugs prescribed by her doctor.The "Death with Dignity" law was approved by 60% of Washington State voters in a referendum last year.  It is based on a law in neighboring Oregon, where 400 people have chosen to die over the last 12 years.  The advocacy group Compassion and Choices of Washington said Ms Fleming died with her family, her dog and her physician at her side.  In a statement, Ms Fleming, who lived in the town of Sequim, said: "I had only recently learned to live in the world as I had always wanted to, and now I will no longer be here.  "The pain became unbearable, and it was only going to get worse. I am a very spiritual person, and it was very important to me to be conscious, clear-minded and alert at the time of my death."  She was diagnosed with pancreatic cancer last month.

Source:  BBC, http://news.bbc.co.uk/2/hi/americas/8064559.stm

Update: 

Email from Margaret Dore re the above post:

Re:  "First WA Death with Dignity patient exercises her rights."

         I am an attorney in Washington State, who has studied our
new Death with Dignity Act, which was enacted via a voter's
initiative.  During the election, proponents touted it as providing
"choice" for end of life decisions.  A glossy brochure declared:

                 Only the patient - and no one else - may administer
the [lethal dose].

         The Act, however, doesn't say this - anywhere.  The Act also
contains coercive provisions.  For example, it allows an heir who
will benefit from the patient's death, to help the patient sign up
for the lethal dose.  See:  Margaret Dore, "'Death with Dignity':
What Do We Advise our Clients?" at
http://www.kcba.org/newsevents/barbulletin/archive/2009/09-05/article5.aspx .

         Contrary to proponents, the patient's control over the
"time, place and manner" of his death, is an illusion.  "Death with
dignity" is, instead, a recipe for elder abuse and worse.

         You may also be interested in my brief analyzing the Oregon
Death with Dignity
Act.  http://www.margaretdore.com/pdf/amicus_take_3_001.pdf. If you
would like more information, please let me know.

Health Beat blog post on death and dying...

Well worth a read:
Demystifying Death: Compassionate, Practical Advice for Patients and Families

GAO report highlights need for PBGC reforms

Summary:  Corporation (PBGC) insures the retirement future of nearly 44 million people in over 29,000 private-sector defined benefit pension plans.  In July 2003, GAO designated PBGC’s single-employer pension insurance program—its largest insurance program—as “high risk,” including it on GAO’s list of major programs that need urgent Congressional attention and agency action. The program remains on the list today with a financial deficit of just over $11 billion, as of September 2008. The committee asked GAO to discuss our recent work on PBGC. Specifically, this testimony addresses two issues: (1) PBGC’s financial vulnerabilities, and (2) the governance, oversight, and management challenges PBGC faces.

To address these objectives, we are relying on our prior work assessing PBGC’s long-term financial challenges, and several reports that we have published over the last two years on PBGC governance and management. GAO has made a number of recommendations and identified matters for Congressional consideration in these reports, and PBGC is implementing some of these  ecommendations. No new recommendations are being made as part of this testimony.

Full report:  http://www.gao.gov/new.items/d09702t.pdf

Old stuff in the news: stunning fossil unveiled

The beautifully preserved remains of a 47-million-year-old, lemur-like creature have been unveiled in the US.  The preservation is so good, it is possible to see the outline of its fur and even traces of its last meal.  The fossil, nicknamed Ida, is claimed to be a "missing link" between today's higher primates - monkeys, apes and humans - and more distant relatives.  But some independent experts, awaiting an opportunity to see the new fossil, are sceptical of the claim. And they have been critical of the hype surrounding the presentation of Ida. The fossil was launched amid great fanfare at the American Museum of Natural History in New York, by the city's mayor. Although details of the fossil have only just been published in a scientific journal - PLoS One - there is already a TV documentary and book tie-in.

Source/more:  BBC, http://news.bbc.co.uk/2/hi/science/nature/8057465.stm

Talk of the Nation discusses the ethics of lying to an Alzheimer's patient

For families caring for a loved one with Alzheimer's disease, communication can be emotionally exhausting.  If the family receives bad or disturbing news, is it ever compassionate to not tell the family member with Alzheimer's about it, or even to lie about it?

Guests:

Ron Bel Bruno, senior vice president and editorial director at HNW, a financial services and marketing firm. He wrote "Do We Need To Go There Again?" for Newsweek.

Joanne Koenig Coste, author of Learning to Speak Alzheimer's

Check out the program

http://www.npr.org/templates/story/story.php?storyId=104310422

HIgh malnutrition rates suspected among elderly

Up to one in six older adults living on their own may not be getting adequate nutrition, a study from Sweden suggests.  Researchers found that among 579 adults ages 75 to 80 years, nearly 15 percent were at risk of malnutrition, based on their diet, weight and recent weight loss, and physical and mental well-being.  Women were more likely to be undernourished than men; nearly 19 percent were at risk of malnutrition, compared with almost 11 percent of men.  In addition, men and women who were depressed or described themselves as unhealthy were more likely than others to become at risk of malnutrition over the next two to four years.  Dr. Yvonne Johansson and her colleagues at Linkoping University report the findings in the Journal of Clinical Nursing.

Malnutrition and dehydration are common in nursing homes, but older adults living at home can also be at risk, for various reasons -- such as poor appetite and mobility problems that limit their ability to shop and cook.  The current findings suggest that doctors should regularly assess older adults' nutritional status, symptoms of depression and their perceptions of their own health, according to Johansson. "This makes it possible to individualize the care of older home-living people in cooperation with different  rofessionals in health and medical care and home-care services," she told Reuters Health.  Older adults can also take steps to ensure they are adequately nourished, according to Johansson. She suggested eating several smaller meals and snacks throughout the day; people's appetites often wane as they age, and many older adults may not be able to manage large meals.  But even though older adults' calorie needs may not be what they used to be, Johansson said, their nutrient needs stay the same -- or may increase. So it's important, she noted, to keep this in mind in meal planning, and choose foods rich in nutrients like protein, fiber, "good" fats, vitamins and minerals.

Source:  Reuters Health: http://www.reutershealth.com/archive/2009/05/18/eline/links/20090518elin002.html

Access journal article:  http://www3.interscience.wiley.com/journal/118513605/home?CRETRY=1&SRETRY=0

Supremes say maternity leave doesn't count for pensions

The Supreme Court ruled 7-2 Monday that women who want their maternity leaves calculated fully into retirement benefits cannot sue for leaves taken before a 1978 federal law made it illegal to discriminate on the basis of pregnancy.

Reversing a lower appeals court decision against AT&T Corp., the justices said the 1978 Pregnancy Discrimination Act does not prevent a company from giving less retirement credit for pregnancy leaves taken earlier in the 1970s than for leaves based on other medical conditions.  Justice David Souter, writing for the majority, said Congress did not intend the PDA to apply retroactively to retirement benefits under otherwise legitimate seniority systems.  Justice Ruth Bader Ginsburg, joined only byJustice Stephen Breyer , said in a dissenting statement that the decision effectively allows continued discrimination based on pregnancy. The former AT&T workers, Ginsburg wrote, "will receive, for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did. They will experience this discrimination not simply because of the adverse action to which they were subjected pre-PDA. Rather they are harmed today because AT&T has refused fully to heed the PDA's core command," that discrimination based on pregnancy must cease.  Ginsburg, the only woman on the nine-member court, noted that "attitudes about pregnancy and childbirth …have sustained pervasive, often law-sanctioned, restrictions on a woman's place among paid workers and active citizens.  Noreen Hulteen and three other women who worked for AT&T started the case, alleging that the company violated anti-bias law by according their pregnancy leaves less retirement credit than medical leave generally. They were seeking greater pension benefits. Lower federal courts ruled for the women in finding that employers could not incorporate pre-PDA accrual differentials into their retirement calculations.

USA Today article:  http://www.usatoday.com/money/perfi/retirement/2009-05-18-maternityleave_N.htm

Decision:  http://www.supremecourtus.gov/opinions/08pdf/07-543.pdf

Ed:  Those creeps.

World Elder Abuse Awareness Day is June 15

Find out about international initiatives; download a community action toolkit at

http://www.inpea.net/weaad.html

New Old Age blog on financial exploitation by relatives and caregivers

Read: 
http://newoldage.blogs.nytimes.com/2009/05/19/in-financial-abuse-a-blind-spot-for-family/

Upcoming elder mediation training announcement

ELDER MEDIATION TRAINING

 June 16, 6:00 p.m. to 9:00 p.m. and

June 17, 18 and 19, 2009 9:00 a.m. to 5:00 p.m. each day

Sponsored by

GOOD SHEPHERD MEDIATION PROGRAM, PHILADELPHIA, PA

To be held at

Temple University James E. Beasley School of Law

Shusterman Hall Conference Center
1719 North Broad St, Philadelphia, PA 19122

This intensive 3-1/2 day training will orient experienced mediators to the kinds of issues associated with aging and the special practice issues that arise when working with older persons, their families and care givers. The training format will combine lecture, video analysis, role-play practice and discussion.

More info:  www.phillymediators.org