Elder Law Prof Blog

Chicago Declaration on the Rights of Older Persons to Be Presented August 1

At the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago on July 10 and 11, many weeks of hard work culminated in adoption of a "Chicago Declaration on the Rights of Older Person."  The 11th draft -- of what is to be a working document for the future -- will be presented at the Fifth Working Session of the United Nations Open-Ended Working Group on Ageing to be held in New York City this week. 

In addition, the Chicago Declaration was submitted by United States Representative Janice Schakowsky (Illinois) to the Congressional Record on July 25. 

Congratulations to all who worked on this, with the leadership of many, including Associate Dean Ralph Rubner and Amy Taylor, Head Research Coordinator at John Marshall Law School.  More work for everyone is ahead on this exciting task of seeking wider recognition of the human rights of older persons. 

Speakers at the "Side Event" for the Chicago Declaration, to be held on August 1 at the U.N., include William Pope, Commissioner of the American Bar Association Commission on Law and Aging, and Ebbe Johansen, Vice President, AGE Platform Europe from Brussels.    

10th Circuit: Defamation Case Can Go Forward Against NBC's Dateline Re "Annuity University"

As readers of this Blog may recall, back in April 2008 NBC's Dateline program aired a segment called "Tricks of the Trade" that incorporated use of hidden cameras to record portions of seminars that allegedly showed insurance salesmen trained to market certain types of deferred payment annuities.  The NBC program alleged that the sales techniques specifically and improperly targeted or misled older consumers.

Tyrone M. Clark and his company, Brokers' Choice of America (BCA), brought suit against NBC and certain employees in federal court in Colorado, claiming the Dateline program violated state law, including allegations of defamation. Clark and BCA also alleged constitutional violations. The federal district court dismissed the complaint in 2011.

On July 9, 2014 the Tenth Circuit affirmed the dismissal of the alleged 4th Amendment violations, but remanded for further proceedings on the allegations of defamation. At the heart of Clark's claim was the argument that a full, unedited viewing of his seminar for insurance salesmen would reveal that students were properly counseled that such "annuities were not for everyone" and that salespeople must give "full disclosure of various advantages and disadvantages of the annuity products."  In other words, Clark claimed Dateline's excerpts were misleading, and therefore defamatory. 

The Tenth Circuit's ruling on defamation stressed that it was reviewing the district court's ruling on NBC's motion to dismiss and thus must view the facts alleged in the complaint "as true and in the light most favorable to the nonmoving party," i.e., Clark and BCA.  The 10th Circuit concluded, "Whether these allegations will survive summary judgment remains to be seen.  The factual basis of the complaint ... is sufficient to state a plausible claim."

Further, the Tenth Circuit upheld the request by Clark and BCA to discovery of the full, unedited tapes surreptitiously recorded by NBC, production that NBC has resisted:

"BCA would be greatly prejudiced in its ability to prove the defamation claim without access to the unedited film. Dateline's First Amendment interests do not involve the disclosure of confidential information or confidential sources. The fact-finder is entitled to the best evidence available, particularly in a case like this, which asks whether the media's zeal to report and perhaps sensationalize should be tempered by its responsibility not to defame. For all of those reasons, BCA's factual allegations are sufficient to warrant discovery of the unedited film. The Colorado statue [on newsperson's privilege] is a shield, not a sword."

For additional details, see the 10th Circuit's ruling on Broker's Choice of America, Inc. v. NBC Universal, Inc. and commentary from the Colorado Bar Association's Legal Connection news. 

     

Overview of Statutory Claims for Health Care Fraud and Abuse

John Washlick, a shareholder with Buchanan Ingersoll & Rooney in Philadelphia and Princeton, provides a concise and useful overview of laws that form the basis for claims of "fraud" or "abuse" associated with Medicare and Medicaid in the most recent issue of Pennsylvania Bar Quarterly (April 2014, available also on Westlaw).  The abstract to his article, "Health Care Fraud and Abuse," provides:

"Medicare and Medicaid combined comprise the largest payer of health care services in the world, and account for over 20 percent of all U.S. government spending.  As a result, efforts to combat fraud and abuse in these programs have become a congressional and administrative priority. This article will address four significant federal fraud and abuse laws: (i) Anti-Kickback Statute, (ii) "Stark" Anti-Referral Law, (iii) Civil Monetary Provisions, and (iv) False Claims Act (Civil and Criminal).  The Patient Protection and Affordable Care Act, more commonly referred to as the "Affordable Care Act" significantly strengthened each of these laws, including increased funding to step up enforcement actions.  There are other federal and state statutes that are aimed at curbing fraud and abuse and they should not be ignored when reviewing a financial arrangement between or among potential referral sources."

A useful guide, especially when reading about multi-million dollar settlements in whistleblower cases growing out of nursing home care, home care, hospice care, and pharmaceutical sales, such as the Omnicare settlement reported on the Elder Law Prof Blog today. 

Omnicare Inc. to Pay $124.24 Million in Settlement of Whistleblower Case

From the Department of Justice, news of the False Claims Act settlement reached with Omnicare Inc., "the nation's largest provider of pharmaceuticals and pharmacy services to nursing homes."  The company has agreed to pay $124.24 million "in return for their continued selection" as the supplier of drugs to elderly Medicare and Medicaid beneficiaries.  The claims related to improper discounts allegedly given by Omnicare as incentives for doing business with the company.

According to the DOJ press release, the settlement resolves two lawsuits filed by whistleblowers under the qui tam provisions of the False Claims Act. "The first whistleblower, Donald Gale, a former Omnicare employee, will receive $ 17.24 million." 

DOJ states that since January 2009, it has "recovered a total of more than $19.5 billion through False Claims Act cases," including more than $13.9 billion in cases alleging fraud associated with health care programs.

Using Filial Support Laws as "Leverage"

What do you think about promotion of filial support laws -- laws potentially obligating adult children to care for and maintain or financially assist an indigent parent -- as grounds to encourage states to promote the purchase of "long-term care" insurance?  In essence, that is what three authors associated with the "American College of Financial Services" advocate in a recent article for volume 20 of  Widener Law Review.  Here's the SSRN abstract from "Leveraging Filial Support Laws Under State Partnership Programs for Long-Term Care Insurance."

"As thousands of the United States’ baby-boomers retire each day, people live longer, families disperse, and the population ages. Financing long-term care needs has become an increasingly important focal point in both civilian and government budget discussions. In order to reduce reliance on government provided long-term care funding programs such as Medicaid, states can leverage the often unenforced filial responsibility laws and State Long-Term Care Partnership Programs. Through the enforcement of existing filial responsibility laws, states can provide the proverbial “stick” to incentivize people to purchase long-term care insurance by increasing their personal liability for their family members’ long-term care expenditures. Furthermore, by offering liability protections from filial responsibility laws under the state’s long-term care insurance partnership program, states will be able to offer a “carrot” to encourage participation in the long-term care insurance market. Ultimately, by leveraging these two existing legal structures, states can incentivize the purchase of long-term care insurance and reduce reliance on government provided long-term care financing programs."

The authors advocate linkage between stronger enforcement of filial support laws and development of state long-term care insurance partnership programs. In the conclusion they write: "[t]he enforcement of existing filial support laws represents a unique opportunity for governments looking to enact long-term care funding changes.  Enforcement of filial laws represents the 'stick' to be applied to those without long-term care insurance."

 

The authors of this interesting article -- worthy of discussion -- self-identify on SSRN and in the footnotes of their article as faculty members at The American College.   As I was not familiar with that institution, I wanted to know more.  My additional research indicates that a more complete name is The American College of Financial Services (linked above), a nonprofit that offers "financial education for securities, banking and insurance professionals," including programs for trademarked designations such as "chartered life underwriter" and  "certified financial planner." 

 

For my part, having studied, written about, and (occasionally) litigated cases involving filial support laws for close to 20 years, I welcome this additional commentary.  I am concerned, however, that insurance companies may be tempted  to see filial support laws primarily as "marketing tools" for the sale of long-term care insurance, without fully appreciating the impact that enhanced enforcement of such laws could have on family dynamics, especially families of modest means.  

Indiana CCRC Files Chapter 11 Bankruptcy to Restructure $14 Million in Debt

From Senior Housing News, comes the word of River Terrace Estates, a nonprofit Continuing Care Retirement Community (CCRC)  in Bluffton, Indiana, that filed for protection in bankruptcy court on July 22.  Unlike some Chapter 11 reorganizations for CCRCs, River Terrace is not a "new" construction, having opened in 2004.  However, as with newer operations that came on line just as the 2008 financial crisis hit, River Terrace reports being impacted by the recession, reportedly a hard hit for housing in Northern Indiana.  As described in Senior Housing News, one potentially unique aspect of the River Terrace financing issues is the source of the loans it carried:

"Contrary to some CCRCs that rely heavily on institutional investments, River Terrace Estates’ financing encompasses roughly 1,400 individuals who own RTE bonds. As a result, the CCRC determined that Ch. 11 was the only feasible method to restructure the bonds. In connection with the filing, the CCRC has already filed a plan of reorganization in order to expedite the process, River Terrace Estates stated in a news release.

 

'Because we have some 1,400 bondholders, we decided the best way to give them a voice in this process is to ask them to vote on a two-part plan so we know their intentions,' Stewart said. RTE bondholders will be asked to vote on whether they want to keep their bonds for the long-term based on the community’s recent progress, or market the CCRC to validate its value."

According to news reports,  either way, "bondholders will take a serious haircut, perhaps recovering only 53% in a bond exchange or $0.46 on the dollar in the sale of the facility, a hard hit on predominantly non-institutional investors," according to George Mesires, a lawyer with the finance and restructuring team for a Chicago law firm, quoted in Senior Housing News and on the firm's website.  

Another potentially unique feature will be River Terrace Estate's plan for going forward with a different payment model for new residents.  Rather than paying an entry fee described as $55k to $100k, new residents can pay a "nonrefundable communtiy fee of about $30,000, accordiong to figures provided" by a spokesperson quoted in Senior Housing News.

This summer has brought news of other financial struggles for CCRCs, including the June Chapter 11 filing by Texas-based senior living company Sears Methodist Retirement Systems, and the Chapter 11 filing by a New York life care community, The Amsterdam on July 23. The ability of CCRCs to emerge successfully from similar reorganizations in the past has often depended on new operating partners and restructuring of loans, but also on the ability of the companies to reassure future residents of appropriate protection and use of "large" upfront fees.  

Reverse Mortgages & Protection for Non-Borrowing Spouse

As we reported previously, Congress passed the "Reverse Mortgage Stablization Act" in August of 2013.  In both state and federal legislatures, a new law's title may over-promise and under-deliver. With respect to reverse mortgages, Public 113-29 gave authority to the Secretary of Housing and Urban Development (HUD) to establish, by "notice or mortgagee letter, or any alternative requirements" deemed ncessary "to improve the fiscal safety  and soundness of the program," and the latest in a series of HUD requirements takes place, as detailed below, on August 1.

From a consumer perspective, one concern has been reported attempts by mortgage companies to "foreclose" on mortgages where the "borrowing spouse" has died but his or her "non-borrowing, surviving spouse" was still in the home.  Other concerns have focused on "defaults" triggered by failure of a borrower to pay real estate taxes or utilities, thus suggesting continuing  vulnerability of the elderly borrower to financial insolvency despite receiving cash from the reverse mortgage.  Taking out a reverse mortgage without careful planning for necessary home-related payments means the borrower can lose the equity in the home, equity that could have been put to better use by selling the home. As reported here, suits have challenged application of payment due status in such fact patterns. 

In June, the Department used its "Mortgagee Letter" authority to issue its latest in guidelines intended to better protect prospective borrowers of the risks of reverse morgages, including requirement that the mortgage companies make clear to borrowers the following:

• FHA insures fixed interest rate mortgages, as well as annual and monthly adjustable interest rate mortgages;
• The borrower has the ability to change the method of payment under the reverse mortgage ARM products at any time provided funds are available;
• Fixed interest rate mortgages are limited to the Single Disbursement Lump Sum payment option where there is a one-time draw at loan closing and no future draws post loan closing;
• Adjustable interest rate mortgages provide for five, flexible payment options, and allow future draws;
• The amount of funds available to the mortgagor is currently determined by the age of the youngest mortgagor, and
• The disbursement of mortgage proceeds during the first twelve-month disbursement period is subject to an initial disbursement limit as determined by requirements set by the Secretary.

In April, the Department issued "Mortgagee Letter 2014-07" to establish, effective August 1, that "the due and payable status will be deferred for as long as a Non-Borrowing Spouse continues to meet all the qualifying attributes...."  The nonborrowing spouse has 90 days after the death of the borrowing spouse to "establish legal ownership" or other legal right to remain in the home. 

Preventive Treatments for Alzheimer's

The July 15, 2014 issue of the Wall Street Journal ran an article by Shirley S. Wang, Alzheimer's Fight Zeroes in on Preventive Treatments. According to the article, researchers are now focusing on prevention or slowing down memory loss, rather than just treating individuals with the disease.  The article reports on the Alzheimer's Association International Conference presentation about a largest prevention study that "found that intervention involving exercise, diet and other behavioral changes significantly improved overall cognitive functioning in patients after two years, compared with patients in a control group."  This is only one of a number of studies focusing on prevention, with a variety of ideas being studied.  The article references an upcoming announcement regarding a partnership with Novartis, Banner Alzheimer's Institute and the NIH.  The article cites to domestic and global statistics.

The article explains the emphasis on prevention

Prevention efforts are receiving more attention and financial backing in the field because of growing recognition in recent years that disease-related changes in the brain begin decades before memory problems become obvious. Treating patients once the symptoms begin may be too late to make a major impact on the disease, as demonstrated by the failure of several highly anticipated experimental treatments in recent years.

Also, a greater ability to measure the progression of the disease in the brain through the use of biological markers, such as the imaging of disease-related proteins, has made it easier to detect the subtle and slow progression of the disease in live humans. Before these biomarker tests, Alzheimer's was diagnosed solely based on clinical symptoms. (It often still is.) Its pathology in the brain could only be examined with autopsy.

However, the studies are challenging because they require following a large number of people for years.

The announcment about the Novartis-Banner study can be found here.

Highlights from the 17th Annual Elder Law Institute in Pennsylvania

Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple:  "Drop everything and go to Pennsylvania's 2014 Elder Law Institute."  Indeed, this year saw some 400 individuals attend. 

Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners.  After the first two-hour joint session, over the course of two days there are four sessions offered every hour.  One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney.  Indeed, I usually sponsor two Penn State law students to attend.  As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.

One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine.  Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review.  Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future.  They frequently pose important policy perspectives, based on recent events. 

Among the highlights from the year in review session:

• Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods.  Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
• A GAO Report on Medicaid Managed Care programs, also released in June, concluding that  additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
• The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
• Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship. 

In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.

The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute. 

New York CCRC Files for Reorganization in Bankruptcy Court

The Amsterdam, also known as Amsterdam House at Harborside, has been marketed as the "first and only" life care community in Nassau County.  It now also appears to be the first CCRC in that county -- and perhaps in the state of New York -- to seek the protection of the bankruptcy court.  The company filed under Chapter 11 for "Reorganization" on July 23, 2014.

As reported in Newsday on July 23:

"An upscale retirement community in Port Washington has filed for bankruptcy protection after failing to get all of its bondholders to support a debt restructuring. The Amsterdam at Harborside sought protection in federal court from its creditors under Chapter 11 of the U.S. Bankruptcy Code. Executives at the not-for-profit said Wednesday that it would not close and there are no plans to fire any of the 173 employees. In a court filing in Central Islip on Tuesday, the continuing-care complex said its liabilities and assets were both in the range of more than $100 million to $500 million."

According to news reports, The Amsterdam was opened in 2010, near the peak of the recession, a tough time for many CCRCs.  It is a "refundable entrance" fee model, with entrance fees ranging from $500,000 to $1.6 million, with a reported 85% occupancy status. Newsday also reports that "under the proposed restructuring plan, [company spokespersons said] the retirement community would honor the contracts of existing residents, continue to refund residents' money when they no longer live there, and maintain the current fee structure."

Update:  Senior Housing News describes the filing as a "pre-negotiated chapter 11 bankruptcy petition to restructure an estimated $220 million in debt."

Check out the July issue of Trusts & Estates Magazine

The July issue of Trusts & Estates has several articles that are useful for our classes.  The 4 articles: Planning Ahead of Diminished Capacity by our own elder law guru Professor Larry Frolik & Bernie Krooks, How Neurologic Conditions Affect Planning by Martin M. Shenkman, The Financial Sweet Spot for Long Term Care Insurance by Gregory D. Singer & Michael Schmid and When Elder Law Meets DINK Planning by Amy R. Tripp.  A subscription is required to access the articles.

Consumer Protection and Older Adults: Key Sessions at Consumer Rights Litigation Conf.

The Consumer Rights Litigation Conference, put on by the National Consumer Law Center (NCLC), is set for November 6-9 in Tampa Florida. This is the preeminent program for consumer rights advocates and there are several sessions with a special focus on protection of older persons.  Sessions include:

 "Reverse Mortages: New Changes and Old Challenges to Foreclosure," with Odette Williamson and Margot Saunders, NCLC, focusing on "emerging issues in reverse mortgages, including the new 'ability to pay' determinations and protections for dispossessed spouses."  (Friday morning, Nov. 7)

"Retirement Benefits and Bankruptcy, Do they Mix?" by Tara Twomey (NCLC), asking whether a "fresh start jeopardizes the debtor's ability to receive social security benefits" and to what extent are "retirement savings off the table for nonsecured creditors." (Saturday morning, Nov. 8)

"Challenging Financial Fraud and Scams Aimed at Older Adults," by David Kirman (North Carolina Department of Justice) and Stephan A. Weisbrod (Weisbrod, Mattis & Coply PLLC), examining legal tools that can be used to challenge these practices, including private actions and suits brought under state statutes, such as California's Financial Elder Abuse Act. (Saturday afternoon, Nov. 8)

Details available here on registration and conference logistics.

GAO Report-Education for Children in Nursing Homes

The GAO released a report on July 16, 2014, Additional Federal Actions Could Help Address Unique Challenges of Educating Children in Nursing Homes. Here are some excerpts from the GAO summary of the report

Children in nursing homes represent a relatively small group of children whose medically complex conditions often present unique educational challenges. Of the nearly 5,000 school-age children in nursing homes nationwide, about 40 percent needed a feeding tube for nutrition and one-third needed oxygen therapy to help them breathe, according to GAO's analysis of 2012 data ...   GAO observed on recent site visits that these children also had conditions that affected learning... Because of their complex medical needs, these children often stayed in nursing homes for long periods of time—about one-third of them for more than a year....

States GAO visited required nursing homes to refer children to school districts for educational services, and in nursing homes GAO visited, staff typically collaborated with school district officials to help them understand the children's needs. Because of the children's medical fragility, education services were delivered primarily in classrooms at the nursing homes or one-on-one (often bedside), with a few children transported to local schools. Teachers that GAO observed used assistive technology and other methods to aid instruction.

State and local school officials reported challenges to serving children living in nursing homes, including curricula development and teacher training. In GAO's nationwide survey, 31 states indicated having adequate training for teachers was a challenge. According to school officials GAO interviewed, teachers may not be fully prepared to teach children with profound disabilities, and several teachers said they could benefit from the experiences of other teachers about how best to serve these children. While the Individuals with Disabilities Education Act (IDEA) recognizes the importance of information sharing to improve educational results for children, current technical assistance efforts supported by the Department of Education (Education) do not include mechanisms for teachers to share best practices about how to serve children with significant cognitive and multiple disabilities. Such information sharing about effective approaches and strategies could help teachers of children in nursing homes be more fully prepared to provide children with education commensurate with their unique needs.

Education and HHS have different, yet complementary, monitoring responsibilities with respect to children in nursing homes... Although collaboration between agencies with a common interest is a key practice, these agencies do not coordinate their monitoring efforts with respect to the education of these children. The relatively small size of this population makes it difficult for Education and states to gather information on whether these children receive education that meets IDEA requirements. Coordinated efforts between the two agencies could help close any potential gaps in Education's monitoring and help ensure that all children in nursing homes receive an education.

A pdf of the full report is available here.

The Five Halves of Elder Law

The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one).  In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized  that perhaps it really has five halves.  See what you think.

• In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death.  Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults.  They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.

 

• Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms.  They have critical skills and knowledge of  health-related benefits under federal and state programs.  They also have sophisticaed  information about the availability of income-related benefits under Social Security.  They often serve the most needy of elders.  Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play. 

 

• At the state and federal levels, core decisions are made about how to interpret laws affecting older adults.  Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse. 

 

• A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of  contracts, insurance and public benefit programs that pay for such services.

 

• Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families.  My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.

Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together. 

My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging,  I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school.  Organizing these "halves" may also help in organizing course materials.

I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law.  What am I forgetting?   

Veterans Needs Should Dictate Care

Kaiser Health News (KHN) ran a story, Veterans' Needs 'Should Drive Where They Get Their Care'.  The article features an interview with "Dr. Kenneth Kizer, a former VA undersecretary for health ...  the founding chief executive officer and president of the National Quality Forum, [and] ... now director of the Institute for Population Health Improvement at the University of California, Davis."  The article reports that both houses of Congress have passed bills that allow veterans to go outside of the VA for medical care in certain circumstances.

Dr. Kizer discusses the challenges of creating such a network for care, a contracting program, reimbursement levels and which veterans could go outside the VA system for care.  The interview is available here.

"Defensive Use" of Powers of Attorney & Revocable Living Trusts

Atlanta attorney Kristen M. Lewis has a very interesting article in the July/August issue of the ABA's publication Probate & Property. In "The Crime of the 21st Century: Financial Abuse of Elders," Lewis brings to bear her experience in estate planning and wealth protection, including use of special needs trusts, to examine examples of elder financial abuse, for which she coins the acronym "EFA."

While I wish Lewis had included more citations of authority to support observations regarding prevalence of financial abuse, what I find unique about the article is the discussion of "defensive use" of powers of attorney and revocable living trusts. She advocates careful drafting of powers for individuals serving in these fiduciary roles and to consider the use of co-agents or co-trustees. Their roles may be limited but can expressly include "oversight." 

On a related concern, in my experience POAs are often silent on the issue of compensation for agents, thus opening a door to confusion or worse about an agent's "self-payment."  In contrast, Lewis recommends that POAs

"... should outline whether and how the agent is to be compensated for services while acting as agent (for example, hourly at a specified rate or a fee based on the value of the assets under management). Fairly compensating an agent can encourage him to be more honest, attentive, and diligent in the exercise of his duties."

For revocable living trusts (RLTs), she advises "it is imperative to identify a lineup of disinterested trustees, persons who have no interest in the assets remaining in the RLT on the elder's death."  Further, she observes that increasingly, "attorneys specializing in estate planning or elder law are agreeing to serve as trustee for their clients' RLTs, or as co-trustee with a corporate fiduciary.  Such professionals are typically compensated based on the regular hourly rate they would otherwise charge their clients."  I suspect Lewis is thinking about trusts with substantial assets.

The full article is currently available only in hard copy, but American Bar Association magazines are usually eventually posted at the ABA website, and the website for the Real Property, Trust and Estate Law Section of the ABA is here.   

Calendar This Meeting: Housing America's Older Adults

AARP's Foundation announced the upcoming meeting: Housing America's Older Adults: Meeting the Needs of an Aging Population, with keynote speaker, Henry Cisneros.  The meeting is scheduled for September 24, 2014 from 10:30 a.m. to 2:00 p.m. at the Washington Court Hotel Grand Ballroom. The website offers a summary of the meeting

The U.S. Census Bureau projects that the population aged 50 and over will swell to 133 million by 2030, an increase of more than 70 percent since 2000.  Housing will play a central role in the overall well-being of these older adults.  Please join us for a presentation of new research, and to discuss the urgent needs of our aging population.  How can we ensure that older Americans are financially secure, able to maintain independence, engaged in their communities, and safe and healthy?  Featuring a luncheon keynote from Henry Cisneros, former U.S. Secretary of Housing and Urban Development, and a solutions-focused panel discussion with housing policy leaders and innovators.

To register, click here.

The Movement for Human Rights for Older Persons in Paraguay

Mexico and countries in the Caribbean, Central and South America have been working very hard on the question of whether laws are needed to recognize and promote the human rights of older persons.  This commitment was demonstrated during the 2014 International Elder Law and Policy Conference in Chicago, by Rosa Bella Caceres Mongelos from Paraguay, as one of the speakers on the panel focused on "Dignity, Equality and Anti-Ageism Rights of Older Persons."

Professor Caceres Mongelos is the current president of the Central Association of Retired Public Servants and Teachers in Paraguay, and has experience as a master teacher, educational administrator, and vocational counselor.  She has also taught classes at the university level on leadership.  When I asked whether her organization is comparable to AARP in the U.S., which was started by a retired teacher, she laughed and said "maybe some day."  I think she would not mind me saying that she's tiny but powerful  -- and certainly she is an articulate spokesperson for the issues her country, with a total popularion of 6.8 million, is facing.

Professor Caceras Mongelos has served as a spokesperson for her civil society organization during regional meetings for Latin America and the Caribbean in 2012 and 2013 that led to endorsment of a formal international convention on the rights of older persons. 

The participation of Paraguay in international discussions of aging is forward-thinking, as it is actually a comparatively young country in terms of its overall population.  Persons aged 60 and over comprise approximately 8% of the population.  Recent news reports  indicate that more than 66% of its population is less than 30 years old.  At the same time, with their citizens already experiencing relatively long-life spans, especially on a comparative basis (average life span is now 75 according to some reports), the country will begin to see the impact of aging as a nation starting in 2038. 

The organization headed by Caceres Mongelos has adopted advocacy goals for its members, including health related goals, such as securing free health care (including mobile clinics) for retirees for critical matters such as vision and dental care, and for treatment of cancer and chronic diabetes, all issues recognized as important for the self-esteem of older persons.   Her Central Association has a project called "Hogares de Jubliados" or "Homes for the Elderly," with a goal of providing space for as many as 200 persons deemed vulnerable and unprotected.  Her organization seeks to "monitor and insure safekeeping of social security funds under control of the treasury" during the current fiscal crisis.  A better system of public transportation is another key goal.

She described her Central Association's recent Yellow Ribbon Campaign to re-enforce recognition of the rights of civil services and retirees to be free from pay discrimination under the Constitution of Paraguay.  She described the yellow ribbons as symbols for the "struggle to claim solidarity, love, better living and the light of hope for a bearable and dignified old age." Despite the small proportion of Paraguayans currently deemed older -- in their "third age" -- she said "fragility" often characterizes their life conditions, with more than a quarter of the population of older adults illiterate and with only 19% currently receiving any form of income from pension or retirement benefits. In addition, her association stresses that real attention must be paid to the needs of older persons in indigenous communities and Afro-descendants. 

In closing, Professor Caceres Mongelos called for an end to procrastination on international recognition of the rights of older persons.  She said,  "Declaring and implementing the regulations calling for dignity, equality and non-discrimination ... for older persons needs to be achieved as quickly as possible [toward] the goal of improving quality of life and respecting the human rights of older persons." 

No Hoarding in Apartments in Houston

Governing ran a story, Houston Passes What May Be the Nation’s First Anti-Hoarding Law. Here is what the law addresses:

After residents and homeowners’ associations there clamored for help, the city council recently passed new regulations allowing police to inspect apartments receiving hoarding complaints. The police may refer hoarders to mental health services and, as a last resort, charge them with a misdemeanor carrying daily fines up to $500.

The article notes the issues arising from hoarding,  "includ[ing] rats breeding, bedbugs, fleas and other unsanitary conditions." The article mentions the challenge for police in determining whether a case is one of hoarding. With enforcement starting in October, 2014, a number of city agencies are working to get ready:

Multiple city departments are now working through the details of just how the new law will be carried out. Police will enforce the ordinance. The health department might be called in to assess mold or other health concerns. Public works staff may evaluate the structural integrity of units weighed down by piles of junk. The Mental Health and Mental Retardation Authority of Harris County and other outside agencies will also be key players.... [I]f the initial law goes well, the city may look to broaden it to include single-family homes if adequate funding exists.

What Should You Look For In An Elder Law Attorney?

ElderLawGuy (and good friend) Jeff Marshall has a great blog post on "How to Find A Good Attorney for Older Adult Issues"  He knows whereof he speaks and starts off by explaining the important reasons for asking the right questions:

"Planning for senior issues like incapacity and long term care is an important aspect of the services provided by what have become known as “elder law attorneys.”  Unfortunately, in most states any lawyer can say he or she practices elder law or hold themselves out as being an “elder law attorney” even if the lawyer has little or no experience with the issues that are especially important to older adults. This means seniors must be particularly cautious in choosing a lawyer and carefully investigate the lawyer before hiring." 

Jeff explains the significance of "certification" as a specialist and how to assess "ratings" or particular approaches to planning, such as "life care planning."  The post is useful both for consumers and young attorneys thinking about how to build a respected career.