Monday, July 21, 2014
Leslie Frances, Associate Dean for Faculty Research Development at University of Utah Law, has an interesting post on the Health Law Prof Blog about challenges to states that have failed to provided Medicaid coverage for needs of residents in "assisted living," as opposed to "skilled nursing" care settings. Here are two such cases she describes:
First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds. The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase. The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014. The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).” Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished). Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard. Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.
Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs. Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services. The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it. Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014).
My own state of Pennsylvania is one of the states that has, in theory, obtained approval from HHS to use Medicaid in assisted living facilities, but even after several years, funding has not been implemented. Across the state line in New Jersey, low income/asset residents in assisted living are eligible to apply for Medicaid.
Sunday, July 20, 2014
Per the post from The Faculty Lounge by Dan Filler:
The AALS Sections on Aging and the Law and on Law, Medicine, and Health Care are sponsoring a joint program at the January 2015 Annual Meeting. The program will consider many of the issues faced by elders, doctors, and the health care and social services systems when making medical treatment decisions for those incapacitated patients and residents who have no reasonably available legally authorized decision maker.....
Please submit your paper or proposal by Friday, August 31, 2014 at 5:00 p.m. Please send it BOTH to Mark Bauer (Chair, AALS Section on Aging and the Law), Stetson University College of Law, mbauer at law.stetson.edu; and to Thaddeus Pope (Chair-Elect, Section on Law, Medicine, and Health Care), Hamline University School of Law, tpope01 at hamline.edu
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, July 18, 2014
The story of Kitty Lee, age 75, and her beloved border collie Zoe, age 18, captures so much that can be poignant about aging. From the Albuquerque Journal, in a story by Joline Gutierrez Krueger:
"For months, Lee knew it was time to say goodbye to Zoe, her constant companion since 1999. The tumor had gotten so big, and Zoe had gotten so weak. Her gentle brown eyes were clouding over. She couldn’t hear. It wasn’t fair to force her to live this way just for Lee’s sake.
“She deserves better than this,” said Lee, 75. “She deserves to die with dignity.”
But dignity is hard to pay for.... Today, Lee lives on a monthly $800 Social Security check, just enough to pay for groceries, bills and rent for the broken-down RV parked in a West Central [Albuquerque, New Mexico] trailer court."
The costs and procedures for euthanasia for the suffering collie were more than Lee could handle alone. Plus, she did not want to simply abandon the decision to others; she wanted to be part of a safe and humane process for Zoe. The Albuquerque Journal writer's first news story resulted in donations and offers of assistance. Eventually, Lee's collie "died peacefully and with dignity in her woman's arms."
I suspect if you have read this far, you too might have a tear in your eye. The full story is here.
Thursday, July 17, 2014
The NY Times ran an interesting story on July 11, 2014 on shared housing and various initiatives. Looking for a Housemate, Not a Mate, in Later Life is a story about "shared living arrangements". The article references a Census Bureau report that notes an uptick in the number of women age 65 and above living alone.
[W]omen are increasingly looking for alternatives to living alone, said Rachel Caraviello, a gerontologist and vice president for programs and services at Affordable Living for the Aging in Los Angeles...With housing costs typically a third or more of living expenses for people 55 and older, the desire to share living space is often driven by economics.
It is not only about economics (since shared housing can mean shared expenses) but "the desire for companionship or the sense of security derived from having a housemate — especially these days, when family members are often far apart." The article quotes Billie Campbell, senior program manager of the Thomas Jefferson Planning District Commission in Charlottesville, Va.: "[multigenerations used to live together... [h]ouses have gotten bigger but households have gotten smaller.” Thus, for those who don't want to relocate, a housemate may be the solution. This also provides the homeowner with the ability to stay in his or her community, the article notes.
The article stresses the importance of roommate compatibility and suggests references and background checks for starters, as well as matters to be addressed in the agreement. I would also like to suggest the value of talking to an elder law attorney and having the attorney draw up the agreement.
Evolution of Human Rights for Older Persons: Preparation for UN Open-Ended Working Group on Ageing, July 30-Aug.1
On July 30-August 1, the United Nation's Fifth Working Session of the Open-ended Working Group on Ageing will be held in New York City. Established by the U.N. General Assembly in 2010, the working group's task is to "consider the existing international framework of the human rights of older persons and identify possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures."
One potential result of this process is to frame and seek approval for a Convention (Treaty) on the Rights of Older Persons, a process which was used successfully, for example, with the U.N.'s Convention on the Rights of Persons with Disabilities (CRPD).
The question of a Convention on rights of older persons was a hot topic during the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago. A number of participants and observers described key moments leading to the present status on international recognition of the rights of older people. Several commented on the prospects for eventual passage of a Convention. Listening to multiple perspective was an educational experience for those not yet steeped in the world of international law and ageing policy and I'll do my best here to provide a concise overview from my notes at the Conference.
Professor Israel ("Issy") Doron from the University of Haifa, a keynote speaker with long experience specifically focused on international human rights for older persons, described the journey that began in the mid-1970s. The first steps led to a first World Assembly on Ageing in 1982. Known as the Vienna Assembly, the body issued a report with 62 recommendations for action (VIPAA 1982), a report that was unanimously approved by the 124 (then) member states in the United Nations. Optimism was in the air. Twenty years later, and with several more intervening gatherings to discuss or focus on international ageing rights, there was a Second World Assembly on Ageing in Madrid and a corresponding report (MIPAA 2002).
Professor Doron rexcognized that this extended timeline can be frustrating for some human rights advocates. Nonetheless, he explained that these steps were important parts of the journey, moving from concern, to concept, to "soft soft law," to "soft law." A Convention or treaty would be "hard law," and thus perhaps also a hard sell, at least for some nations, including the United States. The U.S. has a history of resistence to becoming bound by international laws affecting what it views as "domestic" concerns, even if the U.S. often participates in international drafting.
There are lessons to be learned about the journeys taken by advocates for other human rights instruments. Professor Gerard Quinn from National University of Ireland Galway drew upon the experience of framing the Convention on disability rights, to demonstrate the need to build alliances and to establish a clear reason for an instrument applied to a specific group, such as older persons. National laws can provide models and their existence may help to build support; for example, U.S. law on disability rights paved the way for a key section of the CRPD that recognizes the rights of disabled persons to reasonable accommodations.
Professor Quinn noted a concern that "thematic" treaties may be seen, wrongly, as standing in isolation, rather than as a component of the human rights structure as a whole. Thus, it may be important to show how specific international law is necessary to tackle the problem of "invisibility" of affected individuals. Advocates for a Convention on ageing should also be realistic about the potential for a dichotomy in goals, as where some may emphasize promotion of "autonomy" of individuals while others focus on "protection," a tension that was present during framing of the CRPD.
One of the historical details for the CRPD, that I had failed to appreciate until hearing Professor Quinn, was what he described as "situational support" coming from potentially surprising sources. He described important support for the CRPD provided by Ireland's Mary Robinson and Mexico's Vicente Fox, with the latter making disability rights a major feature of his campaign for president of Mexico. Who will emerge as key supporters for rights of older persons?
Another important perspective on a Convention on Rights for Older People came from Ervin Nina, Counselor at the Permanent Mission of Albania to the UN, where one of his roles was as Vice Chair of the Open-ended Working Group on Ageing from 2011-2014. He explained the history of U.N. Resolution 67/139 ("Towards a Comprehensive and Integral International Legal Instrument to Promote and Protect the Rights and Dignity of Older Persons") adopted by the UN General Assembly in December 2012. Despite "passage" of this resolution that expressly mandates renewed consideration of an international legal instrument, 118 member states abstained from the vote. Thus the low number of states actually voting in favor of the resolution signaled low support for movement forward on a Convention on the Rights of Older Persons.
The final keynote speaker was Eilionoir Flynn, Deputy Director of the Centre for Disability Law and Policy and Senior Lecturer at the School of Law at National University of Ireland Galway. The very articulate Dr. Flynn addressed the challenge of moving forward, including using the upcoming 5th session of the Open-ended Working Group on Ageing as an opportunity to regain and drive momentum. She urged that civil society organizations, who have seats at the table in New York, need to work together to identify goals and reach consensus, and thus to build working alliances for drafting and passage.
During the Chicago conference, several speakers noted that one potential ally -- or stumbling block -- to adoption of a formal Convention on the Rights of Older Persons may exist in the person of the United Nation's newly appointed "Independent Expert on Older Persons' Rights," Rosa Kornfeld-Matte from Chile. On the one hand, Ms. Kornfeld-Matte, appointed by the U.N. Human Rights Council on May 8, and someone with deep experience in ageing issues, has the potential to be a catalyst for true change, including adoption of "hard" international law. However, there is also the potential for international momentum to wane while waiting for the "expert's" investigation and recommendations.
Where to go from here? One of the unique features of the Chicago conference was the decision of the host, John Marshall Law School, to open a deliberative process of its own. Beginning in the early spring of 2014, many of the participants in the conference met with faculty and staff at the law school via email, video conference and telephone, to create a working template of a "Chicago Declaration on the Rights of Older Persons." During the two- day meeting in July, drafting sessions were held in parallel to the speaker presentations, organized into five subject matter groups that examined each element of the working template. The advantage of this approach was to give not just a few U.S. professors a hands-on opportunity to participate, but to obtain input and review from a wide range of faculty, lawyers, social workers, public officials, advocates and interested organizations from more than 15 countries. At the close of the conference on July 11 we learned that the finalized "Chicago Declaration" (by then in its 10th iteration) will be presented on August 1 at the 5th Session of the Open-ended Working Group on Ageing in New York. Check the John Marshall Law School website for updates on the final version.
From my perspective as a comparative "newbie" to international human rights drafting, the Chicago Declaration was an impressive and comprehensive undertaking. It was also a lesson in building consensus and making strategic choices, such as whether to emphasize rights of autonomy or balance that focus with concern about protection for older persons. As one speaker commented, it was an excellent example of engagement, drawing upon academic research skills and international scholarship to tackle real issues in the real world.
Wednesday, July 16, 2014
NPR ran a story about their survey, NPR Survey Reveals Despised And Acceptable Terms For Aging. As a follow up to a story on what to call us as we age, NPR did a survey of listeners. The story includes segments of the initial story and discussed the survey results, with "more than 2,700 people responded, and the winner and still champion was older adult, though you can't say there was any real enthusiasm for it among our poll takers. Just 43 percent of them said they liked it." What about other options? We all have heard the terms elder, senior, or senior citizen used (as well as some less kindly words). The survey showed that nearly "a third of the respondents liked elder. [with] a lot of comments online from people who felt that the term was the most respectful. And about a third thought senior was fine, though if you put the word citizen after it, the favorable rating dropped to less than 12 percent." The article goes on to discuss the less kindly words used to refer to older persons and concludes
in another poll earlier this month, the more scientific poll than ours - that poll found that nearly three quarters of baby boomers plan to continue working during their so-called retirement years, which may mean that the word retirement is also on its way out. The point is we're getting rid of a lot of these traditional terms for aging, but we haven't come up with anything to replace them that reflects what life is like now.
From the New York Times on July 16, 2014, this news of a class action lawsuit challenging dramatic cuts in Medicaid funding for home care:
"A federal class action lawsuit filed late Tuesday accuses New York State health officials of denying or slashing Medicaid home care services to chronically ill and disabled people without proper notice, the chance to appeal or even an explanation, protections required by law.
The lawsuit, filed in United States District Court for the Southern District of New York, names three plaintiffs: an impaired 84-year-old woman living alone in Manhattan, a frail 18-year-old Brooklyn man with severe congenital disabilities, and a 65-year-old Manhattan man with diabetes and a schizoaffective disorder. But it was brought by the New York Legal Assistance Group on behalf of tens of thousands of disabled Medicaid beneficiaries who need home health care or help with daily tasks like bathing and eating."
For the full New York Times article, see Nina Bernstein on "Medicaid Home Care Cuts are Unjust, Lawsuit Says."
From McKnight's comes this interesting report on new statistical information on Alzheimer's:
"The odds of developing Alzheimer's disease fell sharply among seniors in the United States over the last 30 years, according to research presented Tuesday at the Alzheimer's Association International Conference in Copenhagen. The finding casts a new light on prior estimates that the number of people needing long-term care will triple by 2050, largely due to Alzheimer's."
For a more complete report on the Conference, see McKnight's piece "Chance of a senior developing Alzheimer's has dropped 44% over the last three decades, large U.S. study shows."
An interesting moment for me at the 2014 Internatonal Elder Law and Policy Conference at John Marshall Law School in early July occurred when I asked several speakers from China to comment on recent reports suggesting "filial support" or "family support" is attracting interest of legislators, courts and older persons in China. For example, I shared with them the text, in English and Chinese, from Chinese Law Prof Blog on "Controversy Over Elder Law in China," that included news reports on consideration of laws in Shandong province in northeastern coastal China. If passed the laws would appear to require adult children to maintain "their parents' standard of living at a level at least equal to their own."
My question sparked a vigorous debate among the Chinese participants and quite a few chuckles from the audience as we tried to keep up with the translators. Over the course of the next two days Professor Lihong Tang from the law school at Fuzhou University in Fujian Province, Professor Chey-Nan Hsieh from Chinese Culture University in Taiwan, and Professor Xianri Zhou of South China Normal University School of Law in Shanghai attempted to help me understand. Here is my understanding of several points made during our discussion, a conversation we have agreed to continue via email:
- The population of individuals aged 65 and older in China is already 119 million. From my separate research I know that the older population is projected to continue to grow at a rate of 3.2 percent per year. The percentage of the population deemed older is also increasing, and according to some reports, it is projected to hit 1/6th of the total population by 2018 and possible as high as 1/5th of the total population by 2035. In other words, as Professor Tang explained, at some point in the relatively near future the total number of elderly in China could exceed the total population -- young, middle-aged and old -- of the U.S.
- With these population statistics in mind, they advised caution in making any judgments or predictions about trends based on a single case decision or from news stories reporting about any single family controversy involving support. And of course, this point is valuable to remember in all legal research, but the importance (and challenge) of having an adequate empirical base in China may be even more significant.
- Court actions to mandate younger family members to care for their elders are not a major trend in China. Rather, they emphasized that most families voluntarily provide the majority of care and financial assistance needed by their elders.
- There are efforts to create a stronger public system of income support where necessary to meet basic needs.
- Recent news reports (that received high profile attention in the U.S., such as this 2013 report on CNN) about a Chinese law that would mandate that adult children also "visit" their elderly parents were focusing on a "proposed" law, not one that was enacted.
In addition to my on-going discussion with the law professors at the conference, Yihan Wang, Senior Judge in the People's Court of the Jing'an District in Shanghai, gave a fascinating presentation on "The Path of Judicial Protection of the Rights and Interests of the Elderly in China." He has served for many years as a judge, and is currently in charge of "civil trials, commercial trials, finance trials and elderly trials" in his judicial district in Shanghai. He explained that an "elderly judicial tribunal" was established in 1994, for civil cases in which one or both parties is aged 60 or more. His court recognizes that older adults may have unique needs for legal assistance in disputes, including a potential need for free legal representation or guidance.
After the presentation of his paper via a translator, Judge Yihan Wang provided me with a copy of the English language translation of his paper. Thus, I was able to both hear and read about his examples of cases that have occurred in the Shanghai court:
"For one example, in the disputes of sale contracts of real estate, some adult children sell their parents' apartment and violate their parents' residency by stealing their parents' identification -- or make them sign the contract with the older person is unconscious. In [some] cases, the judge will judge the contract as valid to protect the third-parties' legal rights according to the Property Law. However, in cases involving the older [person], judges will consider more about the buyer's duty of care and the residency rights of the senior. They will be more cautious and much more strict to confirm the effectiveness of the contract. Mainly to protect the older people's residency right."
In contrast to my on-going discussion with the three Chinese law professors who emphasized the voluntary nature of assistance provided by families to their elders, Judge Yihan Wang's paper suggested that some level of litigation or claims review does occur over the issue of "family support," including what he described as efforts to "remind the adult children of their duty." His paper reported that "statistics show that 56% of the claiming alimony cases are closed by conciliation. In most of these cases, after the trials, children go to visit their parents automatically and the family relationship is improved." He emphasized that for older adults, "conciliation not only protects their legal rights and interests, but also maintains their family relationship and brings their children home."
Judge Yihan Wang's paper, in translation, concludes with these words: "China's 5,000-year-old culture emphasizes respect for the elderly, pension, help age virtues, which [are] absorbed by Chinese law and policy concerning the elderly, reflected in the Chinese judicial practice and become the judicial characteristics on protection of the rights and interests of the elderly in China."
Thus, I can see that my efforts to understand the role of "filial support" or "family support" laws in China will continue, especially as it appears that there may be regional differences in how any such laws are used or needed. In most countries I have studied, voluntary assistance, both practical and financial, flowing from adult children to elderly parents, is the norm. What I find interesting is the question of to what extent is "voluntary" filial assistance also encouraged, mandated, or subject to enforcement by laws. Is the 5,000 year tradition of filial piety under sufficient pressure in the 21st century that law is necessary?
Tuesday, July 15, 2014
How old do you wish to live? Have you saved enough for your retirement, so you won't outlived your savings? Or maybe you should consider purchasing longevity insurance. An article in the NY Times on July 1, 2014, Longevity Insurance Joins the Menu of Retirement Plan Options discusses how recent changes to tax rules will allow the use of longevity insurance. What is longevity insurance you ask? According to the article "[l]ongevity insurance is actually a deferred-income annuity, in which a person pays a lump sum premium to an insurer in exchange for a guaranteed lifetime income stream that begins several years later...." The article explains why previously these annuities couldn't be used within retirement plans because of the required minimum distribution rules. With the rule change "workers can now satisfy those rules if they use a portion of their retirement money to buy the annuities and begin collecting the income by age 85."
There are some restrictions on the use of annuities, according to the article. For example, "[t]o avoid the distribution rules... retirement plan participants can use no more than 25 percent of their total account balances, or $125,000, to buy the annuity, whichever is less.... [a]nd anyone who inadvertently exceeds the limits will have the opportunity to correct the error without penalty." Additionally, they "must also be relatively basic and cannot be larded with many of the special features .... [b]ut ... providers will be permitted to sell a feature that guarantees that the annuity owner’s beneficiaries will receive the premium amount originally paid" less previously made payments. Read the entire article here.
Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11. There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law.
I learned that there is a strong research network on law and ageing topics in Australia, ARNLA. Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries. Several of the Australian participants reported on recent research or works in progress.
For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia. She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal. Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach.
Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."
Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria. I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties. The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.
Monday, July 14, 2014
It's been nearly 3 1/2 decades since China's government started limiting most urban families to one child. The family planning policy successfully slowed the nation's population growth, but it has had some unintended consequences. One is that some parents lose their only children to illness or accidents and end up with no one to care for them in their old age. Now, these parents have gotten together to demand their rights. A group of parents meets at a Beijing restaurant to talk and console each other. Many of them say they have a hard time relating to people who haven't experienced the heartbreak they have. They ask to be identified by their online names, because they don't want to get in trouble for criticizing government policy. One of the diners identifies herself as Xiaonan's mom. Xiaonan died of illness eight years ago, when he was 25 years old. She says his death made her feel like a failure and her life lost its meaning. More On China's One-Child Policy A man and child walk in Beijing's Tiananmen Square. China's government recently announced an easing of the country's one-child policy. While the move appears to be broadly supported, many urban Chinese parents say it would be hard to afford a second child. Feng Jianmei and her husband could not pay $6,000 in fines for violating China's one-child policy. In June, when she was seven months pregnant, local officials abducted her and forced her to have an abortion, her family says. The case has provoked widespread outrage. "I gave everything to him, so when he left, he took everything I had," she says. "Now I'm just surviving. After he left, I started drinking. If I didn't, I wouldn't be able to sleep at all." Population experts estimate that over 1 million Chinese families have lost their only children. They say that number could exceed 10 million by midcentury.
Read more at NPR News.
I suspect that even in this overcrowded world of news and information, many of our readers have their favorite correspondents, whose emails always provide value added. One of my favorites along this line is Dionysios C. Pappas, Esq., better known to Pennsylvania elder law practitioners and VA specialists as Dennis.
Today Dennis shared a "very disturbing" on-line account from the Philadelphia Inquirer about "disarray" in the Veterans' Administration center in Philadelphia, which is a regional processing center for claims. Dennis points to the latest news of a laundry list of problems, including:
- “...mail bins brimming with claims dating to 2011...”
- “...Two whistle-blowers..., described the process the same: "cooking the books." "They're hiding the real numbers from the people and saying, 'We're catching up to the backlog,'..."But they're not. They're just hiding it."...”
- “...Staff "cherry picking" easy claims and processing them out of order to inflate performance...”
- “...Staff not addressing more than 32,000 electronic inquiries from veterans regarding the status of their claims...”
- “...Staff hiding mail...”
- “...Staff shredding military and returned mail that couldn't be delivered...”
Professional guardians have become important players in the world of adult and elder care. As the need has grown, so have efforts to establish standards or oversight mechanisms. The Center for Guardianship Certification (CGC), for example, offers a national certification process that requires applicants to pass a test, meet minimum eligibility requirements, pay a fee, and make attestations about their background. As reported recently by Sally Hurme for the ABA's Commission on Law and Aging, "as of April 2013, CGC had approved over 1,600 National Certified Guardians and 65 National Master Guardians throughout the country."
Some states have required professional guardians (as opposed to family member or similar one-time guardians) to obtain CGC certification or have adopted state-specific certification standards. In some states, such as Texas and Washington, certification combines with a state entity to receive and evaluate complaints about professional guardians, combined with a disciplinary process. Such disciplinary boards are usually treated as a supplemental option, rather than as a substitution for court reviews, where parties seek review of a guardian's performance.
Having the power to affect the career of a guardian, disciplinary boards for professional guardians have generated questions about procedural fairness. In a recent decision by the Washington Supreme Court, the court was called upon to review the procedural fairness of anctions imposed by the Washington's Certified Professional Guardian Board. At the heart of the challenge was the defendant's allegations of bias against her by an influential member of the Board, someone with whom she had previously served on the Board, and further asserting that the hearing officer had a financial interest in the outcome of the disciplinary proceedings, because of desire to continue his paid role for the Board.
The allegations against the defendant, who had more than 10 years of experience as a certified guardian and who maintained an active caseload of more than 60 guardianships, focused on her role as guardian for an elderly woman and for a disabled younger adult. She was alleged to have failed to assist in timely purchase of new glasses for the elderly woman with dementia, and to consult regarding movement of the younger adult to a hospice facility. The defendant contended that all actions taken by her were appropriate and consistent with the discretion accorded her under a "substitute judgment" standard.
In its July 3, 2014 decision in The Matter of Disciplinary Proceedings against Lori A. Petersen, the Washington Supreme Court, sitting en banc, rejected the defendant's arguments about a "personal vendetta" against her, upheld the findings and conclusions regarding defendant's alleged violation of state guardianship standards in serving the two wards, and rejected the defendant's arguments about procedural unfairness.
Nonetheless, the Washington Supreme Court ruled that "[b]ecause this is a case of first impression and the Board aspires to consistency with disciplinary sanctions, we remand to the Board to consider whether the sanctions sought against [the defendant], including the monetary fees, are consistent with those imposed in other cases." The Court questioned the imposition of a one year suspension from practice and more than $30,000 in costs and fees, stating its belief that the "circumstances of this case and the severity of the sanctions and fees in light of the charges brought by Petersen warrant an explicit proportionality inquiry."
In 2010, a Seattle Times news article raised questions about the oversight role of the Washington board, reporting that in "five years, the board has taken action against seven guardians or guardian companies. One lost certification. The others negotiated deals in which they promised not to break the rules. Some agreed to additional monitoring."
In the Petersen case, the Washington Academy of Elder Law Attorneys (through Rajiv Nagaich, Esq.) submitted an amicus brief, challenging the procedural fairness of proceedings against professional guardians in Washington.
For additional thoughts about oversight of guardians, see "A Call for Standards: An Overview of the Current Status and Need for Guardian Standards of Conduct and Codes of Ethics," by University of Washington Law Professor Karen Boxx and Texas attorney and former executive director for the National Guardianship Association, Terry W. Hammond.
Sunday, July 13, 2014
So, it's Monday. What did you do over the weekend? Work nonstop on an article? Answer email? Or did you do something "fun"? Do you plan to retire? What will you do in retirement?
According to a June 27, 2014 report from the Bureau of Labor Statistics for the Department of Labor, Adults 75 and over spent 7.5 hours engaged in leisure activities on an average day in 2013. "On an average day in 2013, adults age 75 and over spent 7.5 hours engaged in leisure activities—more than any other age group; 25- to 34-year-olds spent 4.3 hours and 35- to 44-year-olds spent 4.1 hours engaged in leisure and sports activities—less than other age groups." The data includes 11 categories of "primary activities" and breaks down in the information by activity, sex and age group. (Hmm, "hanging out" wasn't listed as one of the primary activities). You can also access a table of the data from the chart here.
Saturday, July 12, 2014
University of Missouri Law Professor David English, who is the current Chair of the ABA Commission on Law and Aging, provides a succinct outline of key legal challenges connected to aging in the U.S., an outline he also uses to organize his law school's Elder Law course. The essay appears in the May/June issue of Bifocal, capturing a lecture Professor English gave to the Institute of Gerontology at the University of Tokyo, Japan and the Beiing Administrative College in China.
In addition to the impact of demography, Professor English points to the following "challenges:"
- Employer Pensions: "In many countries, pensions provided by employers are closely coordinated with government Social Security payments. In the US, the two systems are independent...."
- Social Security: "It is predicted that the [Social Security] Trust Fund will run out of money in 2033. The program will thereupon have to cut benefits by about 25% in order to match payments to current Social Security taxes. To avoid such a sudden cut, Congress should act well in advance of the 2033 deadline to either increase Social Security taxes or modify benefits. Each year that the US Congress waits to act, the necessary adjustments will become more severe...."
- Health Care Finances: "...Medicare already has many gaps in coverage, requiring that elderly persons purchase private supplemental policies. Medicaid for the poor isn't necessarily in better financial shape, and because of low fees paid by Medicaid, many doctors refuse to accept Medicaid patients. Nor are Medicaid benefits coordinated well with Medicare...."
- Consumer Fraud: "The elderly are frequent targets of fraud. Federal and state regulation is incomplete and inconsistent.... Examples include: mortgage fraud; fraudulent sales of private health insurance; theft by court-appointed guardians; theft by agents under powers of attorneys; funeral fraud; telemarketing, home repair, and sweepstakes fraud."
- Guardianships: "Over the past 30 years, there have been major reforms in US guardianship laws. The court is encouraged to explore alternatives to guardianship before making an appointment. In making an appointment, the court is encouraged to give the guardian only such powers as are necessary, a goal which is achieved by appointing what is known as a limited guardian. But there is a big gap between the statute and the actual practice."
- Planning for Incapacity: "Most people will lack adequate mental capacity to make their own decisions sometime during their lives. Yet, most adults fail to plan in advance. There is a need for better education on the options and encouragement for people to plan."
- Health Care Decisions: "[S]igning a health care power of attorney or health care directive may not be effective to assure that health care decisions are made in accordance with the individual's wishes.... POLST [Physician Orders of Life Sustaining Treatment] shows great promise of creating a pathway whereby a patient's wishes will more likely be honored."
- Elder Abuse: "Similar to guardianship, good data on the prevalence of elder abuse does not exist but the increases in the number of elderly suggest a corresponding increase in the incidence of abuse."
Professor English was also one of the participants at the 2014 Elder Law and Policy Conference recently held at John Marshall Law School in Chicago, serving as a moderator, with JML's Barry Kozak, for the panel on "social security, pensions, and economic rights of older persons."
On June 16, an elderly man who had recently suffered a stroke took his 2011 Honda Fit in for an oil change. While he was at the dealership, the sales staff allegedly talked him into buying a car he didn't need. Frank Merlino, 86, is a former Marine from Jacksonville, Florida. His numerous health issues include recovery from a stroke, and he exhibits the early signs of dementia. He is not the type of person who is in the right frame of mind to make an auto purchase.
Frank's local Honda dealer took his perfectly fine 2011 Honda Fit on a trade, and sold him a brand new 2015 Fit, according to his family. The dealership was also nice enough to include thousands of dollars in additional fees in the way of a maintenance plan and service contract. This brought the grand total to a whopping $27,000 on a car that has a maximum MSRP of about $21,590. From USA Today: "They sold him a car for $27,000," Gina Merlino said, "And they told him he has seven years to pay it off at $459 a month." "They told him all you have to do is put gas in this car," she said. "They made it sweet for him." Once the sales manager of the dealership met with the Merlino's caregivers, he decided to cancel the sale and return Frank's 2011 Fit.
Note: Jalopnik's writer filed this story under "Stealerships"...
Friday, July 11, 2014
The Employee Benefit Research Institute (EBRI) issued a June 19, 2014 fast facts on What Long-Term Care Costs in Retirement Could Do to Retirement Readiness. Here is a description
A new report by the nonpartisan Employee Benefit Research Institute (EBRI) reveals that assuming 100 percent of the average expenses (based on post-retirement income) for components likely to be encountered on a regular basis (e.g., food, housing, transportation)—but ignoring the costs of nursing home and home health care expenses—about 17 percent of those in the second-income quartile would run short of money by the 20th year in retirement, as would 5 percent of those in the third-income quartile and 1 percent of those in the highest-income quartile, assuming a retirement age of 65.
The full report, "Short" Falls: Who's Most Likely to Come Up Short In Retirement & When? offers the following executive summary
• This Notes article provides new results showing how many years into retirement Baby Boomer and Gen Xer households are simulated to run short of money, by preretirement income quartile.
• Under a variety of simulated post-retirement expense scenarios, the lowest preretirement income quartile is the cohort where the vast majority of the retirement readiness shortfall occurs, and the soonest. When nursing home and home health-care expenses are factored in, the number of households in the lowest-income quartile that is projected to run short of money within 20 years of retirement is considerably larger than those in the other three income quartiles combined.
• Extending the results to a maximum of 35 years in retirement (age 100, assuming retirement at age 65), 83 percent of the lowest-income quartile households would run short of money and almost half (47 percent) of those in the second-income quartile would face a similar situation. Only 28 percent of those in the third-income quartile and 13 percent of those in the highest income quartile are simulated to run short of money eventually.
The full report is available here.