Sunday, August 31, 2014
A number of law students I have known have found great jobs in recent years in smaller communities. Here is more evidence of the reason, from the Washington Post, as reported by Danielle Paquette: "8,500 residents, 12 Attorneys: America's Rural Lawyer Shortage."
"Fourteen years ago, the veteran lawyer built his retirement home. He decorated the basement with snowmen and skis, a nod to how he’d like to spend the future. But John Thomas, 61, can’t retire. Can’t plan lengthy trips to Colorado resorts with his wife, Nancy. Not until he finds a successor, a young lawyer to take over his law firm in this town, population 94.
The problem: Young lawyers in these endless plains are about as scarce as freshly powdered slopes. That’s why Thomas’s hopes soared in February, when he opened a letter from Alissa Doerr, a second-year student at the Nebraska College of Law. She wanted to be his clerk for the summer. She was his first applicant in 20 years."
Recently I participated in a series of roundtable discussions about end-of-life decision making and care. Community members, doctors, hospital staff and representatives of long-term care providers participated. There were several memorable moments. At one point, a former hospital employee said that it had been her job to get "living wills" signed by patients before surgery. Another administrator confessed she wished there was a Medicare billing code, so that her staff could conduct a proper discussion of living wills and similar advance directives with patients.
According to the New York Times, there may be such a billing code, at least for private insurance. From the front page of Sunday edition, "Coverage for End-of-Life Talks Gaining Ground."
"Five years after it exploded into a political conflagration over 'death panels,' the issue of paying doctors to talk to patients about end-of-life care is making a comeback, and such sessions may be covered for the 50 million Americans on Medicare as early as next year.
Bypassing the political process, private insurers have begun reimbursing doctors for these 'advance care planning' conversations as interest in them rises along with the number of aging Americans. People are living longer with illnesses, and many want more input into how they will spend their final days, including whether they want to die at home or in the hospital, and whether they want full-fledged life-sustaining treatment, just pain relief or something in between. Some states, including Colorado and Oregon, recently began covering the sessions for Medicaid patients.
But far more significant, Medicare may begin covering end-of-life discussions next year if it approves a recent request from the American Medical Association, the country’s largest association of physicians and medical students. One of the A.M.A.’s roles is to create billing codes for medical services, codes used by doctors, hospitals and insurers. It recently created codes for end-of-life conversations and submitted them to Medicare."
Friday, August 29, 2014
Glen Campbell was diagnosed with Alzhemier's disease in 2011, and with his wife, he bravely told the public. What happened next -- on his "Goodbye Tour"-- has been turned into a vivid, moving film. The trailer of "Glen Campbell ... I'll Be Me" is now available, in advance of the official October 2014 release of the film.
From Kaiser Health News (in partnership with NPR and Capitol Public Radio):
"A bill passed by the California legislature this week is putting Gov. Jerry Brown in a delicate position: Sign the measure and support consumer demands for a change in the state’s policy on recovering assets from Medicaid enrollees or keep the current system that generates about $30 million used to provide Medicaid benefits to more residents.
The governor typically does not comment on bills until he receives the actual text from the legislature. His Department Of Finance, however, opposes the bill, pointing out that the recovered assets help the state provide services to others. The bill that just passed the legislature this week, would prohibit the state from trying to recoup some of the money spent on older Medicaid enrollees for ordinary health coverage by recovering assets after they die.
Federal law requires states to recoup money spent on institutional care, such as nursing homes, by Medicaid, the state-federal health care program for low-income people. But it also allows states to recover costs from people after they die if they received basic medical services through Medicaid at the age of 55 or older.
In California, advocates of the bill say the current law is complicating enrollment in Medi-Cal, the state’s Medicaid program, with some people refusing to sign up, and others terminating enrollment for fear of not being able to pass on their estate.The state has enrolled 2.2 million people into Medi-Cal under the Affordable Care Act."
Thursday, August 28, 2014
Pennsylvania has a long and colorful history with charitable trusts and bequests coming from wealthy entrepreneurs, including the histories of The Barnes Foundation and The Hershey Trust, both of which have generated "classic" cases studied in law school courses.
This week, a Philadelphia Court of Common Pleas (the trial level court) issued the latest decision on the Stephen Girard Trust from 1831, the "painstaking details" of which created Girard College. For much of its existence Girard College functioned as a multi-year, residential boarding school program for orphan boys. Past court cases have resulted in rulings that permitted significant "deviations" from the terms of the wealthy philanthropist's will, including admission of minority students, female students, and expansion of the definition of "orphans" to admit students who still had one living parent.
At issue now is whether the trustees (actually a "Board of City Trusts" created by statute in 1869 to administer trusts left to Philadelphia for charitable purposes) will be permitted to further "deviate" from the settlor's original vision for the school, in order to create a more "financially sustainable" model.
Despite the long history of changes, leading the court to describe Stephen Girard's will as "the most litigated will in history," the court treated the latest proposals -- elimination of the residential program and "high school" classes -- as triggering a stricter standard of review, under the doctrine of cy pres:
"This Court does not agree that the requested modifications relate to administrative provisions of Stephen Girard's Will. The design of Girard College as a boarding school, intended to provide a residence, as well as an education to its students is reflected in the very terms of the Will....
Rather than an administrative decision, this Board [of City Trusts, acting as trustees] is seeking a cy pres remedy. This doctrine, unlike administrative deviation, is applied where a change is sought to the purpose of the trust.... Divorcing the residential aspect of Girard College and the high school program from a Girard education is inconsistent with the very terms of the Will and the directions of the testator.
The cy pres doctrine, now codified,... permits this Court to approve a change in the terms of a Trust to direct it to purposes that are as close as reasonably possible to the settlor's original intent and that are possible to fulfill. The cy pres doctrine cannot be invoked until it is clearly established that the direction of the donor cannot be carried into effect."
After reviewing the evidence about the operating finances of Girard College, the court takes the time to commend the trustees "for beginning to confront the myriad of financial, educational and institutional challenges currently facing Girard College." Nonetheless, the court concludes that based on the financial information it "cannot permit the Board to modify the Will of Stephen Girard as requested.... This Court cannot treat those proposed changes as administrative deviations and will not apply the cy pres doctrine absent a showing that achieving those objectives is impracticable."
In addition to the discussion that clearly distinguishes the law of "deviation" from "cy pres," the outcome is also notable because:
- The court had earlier rejected "standing" for a Girard College alumni group that sought to oppose the proposed changes;
- The changes were denied despite the fact that the Attorney General, who has statutory standing to enforce terms of charitable estates in Pennsylvania, had apparently declined to take action;
- The court appointed an individual to serve as "amicus curiae" to examine and report on the Trustees' proposal to modify the trust terms and the individual's recommendations were clearly important to the ruling.
Pennsylvania Attorney Neil Hendershot (and Dickinson Law alum) who represented the Girard College Alumni Association, and who alerted me to this interesting decision, has additional details on his Pa Elder, Estate and Fiduciary Law Blog. Thanks, Neil!
Whether the trial court's decision will be appealed is not yet known.
And by the way, as evidence of the long litigation history of the Stephen Girard Trust, this latest ruling is filed under what appears to be the original -- or at least a very early -- Orphan's Court docket number: "O.C. No. 10 DE of 1885." A docket number that lasts 129 years? Impressive.
A local St. Petersburg, Florida hospital has redesigned their ER to make it elder-friendly. The Tampa Bay Times on August 28, 2014 published the article, HCA Opens First Local 'Senior ER' at St. Petersburg General. The recently remodeled ER features "[f]our treatment rooms outfitted with softer lighting, thicker mattresses and nonskid floors... [a] separate waiting area... [and] [t]hree seniors-only parking spaces close to the ER doors." The article notes that HCA, owner of the hospital, is targeting elders in its marketing efforts, with new advertising about the revamped ER. The changes are not all just to the physical plant. Staff has been "retrained about geriatric care, such as screening for dementia, managing medications and asking carefully worded questions to understand what the patient's home environment is like."
Although this is the first of HCA's remodeled ERs in the West Florida area, they have also redone several other ERs in Florida. Is an "elder-friendly" ER the next big thing?
Seniors-only emergency rooms could be the next trend, though it's too early to tell if it's a "fad or wise planning," says a report this year from the ECRI Institute, a nonprofit health research organization. No one tracks the numbers, but researchers used news articles to estimate that more than 50 have opened since 2011, with another 150 in development.
The article notes that revamped ERs don't all look the same and some include providing geriatric care specialists for those elder patients in the ER.
Here's another great educational video suggestion from John Marshall Law School's Barry Kozak.
Unfortunately, this video is in a format that I cannot show directly here. Nonetheless, I'm recommending it too, and providing the link. Alanna Shaikh's "How I'm Preparing to Get Alzheimer's" is provocative, with great dashes of wry humor. She uses her father's twelve year history of dementia as incentive to prepare herself for getting dementia. Alanna rejects "denial" and she's realistic about the likelihood of "prevention or cure" in her lifetime. She talks about preparing for the "Alzheimer's Monster."
Listen to her practical steps to prepare. What do you think of them? Realistic? What I appreciate is her focus on working harder to become a better person now, in hope of carrying forward that quality as a deeply engrained personality trait. She's echoing my own belief, based on observation, that "personality" tends to concentrate over time, with the strongest held traits lasting the longest -- whether for good or ill effect. Once the rational mind is no longer in control, those essential traits do seem to dominate.
Wednesday, August 27, 2014
A couple who met as teenagers 10 years before the start of World War Two have celebrated 80 years of marriage. Maurice and Helen Kaye, from Bournemouth, met in 1929 when they were 17 and 16 respectively. They courted for four years because Mrs Kaye's mother wanted her older sister to be married first. The couple, who are now 102 and 101, said the secret to a happy marriage was being tolerant of each other and being willing to "forgive and forget". The pair, one of Britain's longest-married couples, plan to celebrate their oak wedding anniversary with children, grandchildren and great-grandchildren.
Another video suggestion for the classroom from Barry Kozak at John Marshall Law School, this time demonstrating the history of modern human population growth, and highlighting income and longevity in the U.S. and China. I first watched this interesting video at the prompting of Professor Issi Doron, Haifa University. The energetic speaker, Hans Rosling, is a professor of international health at Karolinska Institute in Sweden, and also the founder of Gapminder Foundation that creates the dynamic graphs.
Tuesday, August 26, 2014
The Borchard Foundation Center on Law and Aging is once again making key research money available for academic projects to be funded in 2005:
"The Center makes no more than four annual grants up to $20,000 each. Larger budgets using outside matching funds are encouraged but not required. Favorable weight is given to proposals that indicate, where appropriate, that active attempts will be made to solicit required additional funds for the project (including a list of sources to be approached). Grant funds may be used for the approved budget purposes, which may include reasonable compensation for the principal investigator(s), consultant(s), and research assistant(s), print and computer-based research materials, and other necessary expenses. Ordinarily, summer salary support will not be approved where the applicant is eligible for significant support from his or her university or other institutions. Grant funds may not be used for university overhead or administrative charges, and the Center will not otherwise pay any such costs."
And a reminder of the deadline for applications: "Applicants must submit an online application found on the Center’s Web site at www.borchardcla.org no later than October 27, 2014. Proposals will be reviewed and grants awarded by a committee composed of the Center’s academic advisory board members, co-directors, and fellows. Selections will be made on or about December 15, 2014."
For more information on the Borchard academic grant program, go to their website at www.borchardcla.org. Thanks to Borchard Co-director Mary Jane Ciccarello for reminding us of this important funding source for creative projects.
Barry Kozak, Director of Elder Law Programs at John Marshall Law School, recently shared with us a copy of a syllabus for his new course on elder law. He's making a conscious choice to organize his class sessions to highlight core concepts addressed by the Chicago Declaration on the Rights of Older Persons. He's assembled a list of great short videos for use in class, and he's allowed us to pass on his suggestions to readers of our Blog. Thanks, Barry!
Here's a great starting point, a four minute video from HelpAge USA and Pfizer Inc. that introduces the concept of global aging as an important driver of economic growth. Instead of wringing our hands over the aging tsunami, these speakers urge this phenomenon as a reason to think creatively.
Monday, August 25, 2014
As explained earlier today in our Elder Law Prof Blog post about the most recent article by Professors Bisom-Rapp and Sargeant, lifetime discrimination in wages and opportunities has long-range implications for working women. Along this same line, the National Senior Citizens Law Center and Half in Ten (The Campaign to Cut Poverty in Half in Ten Years) are working together to tackle the question of senior poverty and have created an excellent two-page "visual" profile of poverty and opportunity statistics that demonstrate graphically how poverty presently impacts seniors. For example, they provide easy-to-understand graphics on how poverty among seniors disproportionately affects women, especially women of color. The PDF document should be very useful in classrooms.
In a feature article on Medicare's "star ratings," the New York Times reports that some nursing homes are able to "game the system" through self-reports of data that fail to include complaints filed with state agencies. The article uses examples to show that even five star ratings, the highest available, can be obtained despite pending state investigations into serious allegations of mishandled care. The ratings by Medicare were intended to provide an objective measure for consumers and in recent years a growing proportion of nursing homes have obtained higher ratings.
"But some nursing homes are not truly improving. Instead, they have learned how to game the rating system, according to ]New York Times] interviews with current and former nursing home employees, lawyers and patient advocacy groups. Nationally, the proportion of homes with above-average ratings has risen steadily. In 2009, when the program began, 37 percent of them received four- or five-star ratings. By 2013, nearly half did.
The Times analysis shows that even nursing homes with a history of poor care rate highly in the areas that rely on self-reported data. Of more than 50 nursing homes on a federal watch list for quality, nearly two-thirds hold four- or five-star ratings for their staff levels and quality statistics. The same homes do not fare as well on the sole criterion that is based on an independent review. More than 95 percent of the homes on the watch list received one or two stars for the health inspection, which is conducted by state workers."
For more, see "Medicare Star Ratings Allow Nursing Homes to Game the System" by Kate Thomas.
Thomas Jefferson School of Law Professor Susan Bisom-Rapp and Middlesex University (UK) Business School Professor Malcolm Sargeant, both with deep expertise in employment and labor law, have joined forces to examine the long-range impact of discrimination against women during the course of their working lives. Based on experiences in the U.S. and the U.K., they recommend a comprehensive strategy to remedy identified problems. Their article, "It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women - The U.S. and U.K. as Examples," was published in 2014 in theUniversity of Illinois' Elder Law Journal. Here's a tantalizing introduction:
"This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination."
Professor Bisom-Rapp is also a co-author of The Global Workplace: Internatioanl and Comparative Employment Law - Cases and Materials, now in its second edition.
Sunday, August 24, 2014
We've reported several times, including here and here, on recent academic and professional publications that address the sensitive topic of "consent" to sexual relations for individuals residing in nursing homes.
The Huffington Post and other media reports now bring the topic into the general public realm with coverage of a complicated case emerging in Iowa, where a husband has been arrested on charges connected to sexual relations with his wife, a resident with Alzheimer's, in her nursing home room.
Two items that may be critical to the outcome of the case: Alleged "notice" to the husband by the facility that his wife was no longer legally able to give consent to sexual relations, and the identity of the husband as a public figure. The fact that the husband is a state legislator is a reason why the case may get wide news coverage. But that wider coverage could also generate important discussion and debate about the deeper legal, personal and public issues. From one article:
"An Iowa legislator who allegedly had sex with his mentally incapacitated late wife has been charged with sexual abuse. Henry Rayhons, 78, a Republican state representative from Iowa House District 8, was told by medical staff on May 15 that his wife, 78-year-old Donna Rayhons, no longer had the mental ability to consent to sexual activity, according to a criminal complaint obtained by WHO-TV. Donna Rayhons, who suffered from Alzheimer's disease, had been living in Concord Care Center in Garner, Iowa, since March, according to the Des Moines Register....
In an interview with law enforcement in June,Rayhons allegedly confessed to 'having sexual contact' with his wife, according to KCCI. He also allegedly admitted that he had a copy of the document that stated his wife did not have the cognitive ability to give consent. Rayhons was charged with third-degree sexual abuse on Friday.
Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, told the Des Moines Register that even though spousal rape has been illegal in Iowa for about 25 years, arrests for the crime are rare and 'convictions are even rarer.' Barnhill also noted that sexual assault between spouses is not considered a 'forcible felony' in Iowa."
According to new sources, the family has also made a statement.
August 24, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
The Pennsyvania Joint State Government Commission issued a final report of its Advisory Committee on Long Term Care Services and Support for Older Pennsylvanians on August 21, 2014, following a year-long assessment of existing concerns of independent and care-dependent elders in Pennsylvania.
In a one-page summary of the 200 page report, the Commision makes the following Recommendations:
"Opportunities exist to improve system structure and organization, reduce barriers, and break down silos that characterize service delivery and payment. Better care transitions and improved coordination of service providers are also crucial, along with increased support for family caregivers. Focused information and awareness for consumers and families helps ensure they know where to turn when a crisis hits, which is often their first exposure to long term care. Expanding access to services and supports, through a tiered system that shares costs, will help improve quality and increase accountability. Enhancements to local resources, including Area Agency on Aging networks, will focus services and advance more equal community, facility, and home care options. These reforms will help ensure access to long term care for all Pennsylvania seniors, and prevent those who need assistance but don’t qualify for supports, from falling between the cracks."
Now comes the hard work . . . getting to an implementation stage.
Saturday, August 23, 2014
The New York Times uses the history of one family's struggle to demonstrate growing concern on the part of banks and other financial institutions about potential misuse of popular documents such as powers of attorney or trusts to access accounts. In "Power of Attorney Is Not Always the Solution," writer Paul Sullivan tells the story of "Carol" and her brother, now suffering from dementia, who years before had named his sister as his agent:
"[W]hen she looked at the power of attorney, she noticed that he had used her legal first name, Carol, which she had all but abandoned in childhood, not the middle name she had used instead.
She didn’t think much of it until she went to the first of the many banks he used. She presented the power of attorney, explained the situation and waited. Instead of getting access to his accounts to pay for his care, she was told the bank would not honor her power of attorney because the name was wrong....
She said she has lost countless hours from work and her own family sorting out payment for his care. After supplying a pile of documents, the two that seemed to have helped were an affidavit from her brother’s lawyer saying that Christine is the person he wanted to have control over this affairs and a document from the Social Security Administration that was the missing link for the various iterations of her name.
She has been able to move some of his assets into a trust for his care, yet she remains baffled by a process that is far from over. 'It’s insane,' she said. 'He was all buttoned up with all the documents you needed. But he could outlive me, which is going to be interesting. Then what happens?'"
Hat tip to to Prof. Laurel Terry, and her early morning practice of reading the New York Times, for alerting us to this piece!
Friday, August 22, 2014
Canada's hospitals are "overflowing at the seams" with patients who don't need to be there - frail and aging seniors, many of them with dementia, who have nowhere else to go, says the incoming leader of the Canadian Medical Association. The "warehousing of seniors" is costing the system $2.3 billion a year and highlights urgent need for a national rethink of seniors' care, Dr. Chris Simpson said in his inaugural speech Wednesday as CMA president.
Simpson, who also chairs the national Wait Times Alliance, said Canadians are facing long waits for virtually every non-urgent test, surgery or procedure "because the beds needed are filled with patients who don't need to be in hospitals."
Seniors awaiting placement in other facilities are occupying about 15 per cent of hospital beds. But "instead of focusing on getting them back to their independence we put them in beds, because that's what we do in hospitals. We put people to bed instead of putting them in a care environment that lifts them up and restores them and helps them live a dignified life."
One of the goals of the 3rd World Congress on Adult Guardianship was to form an online International Resource Library on Adult Guardianship. All submissions, including papers, brochures, manuals, handbooks and more, are welcome if they would be of help to others.
Submissions may be made by emailing firstname.lastname@example.org with the subject line “resource library.” Please provide, in English, a description regarding the document(s) you send, so that we can name and categorize them. Resources may be in English or in the language in which they were written. Please respect U.S. Copyright laws.
Access the International Resource Library.
From our good friends at the National Senior Citizens Law Center (NSCLC), which has offices in California and Washington D.C., details of a major fellowship opportunity for law school graduates for 2015 -- but interested individuals will need to work quickly:
The Position: NSCLC seeks to sponsor law student applicants for 2015 Fellowships, including school-based fellowships, the Borchard Foundation Center on Law and Aging Fellowship, the Equal Justice Works Fellowship, the Skadden Fellowship, and others. Work could commence in summer or fall 2015. The joint application process between NSCLC and the applicant for a 2015 fellowship would begin in summer 2014. The location for the Fellow is Los Angeles, Oakland or Washington, D.C., depending on the fellow’s preference, the subject matter, and NSCLC’s needs.
The Project: NSCLC staff will work with the applicant to prepare a fellowship application for a project of the applicant’s choosing, in any area of NSCLC’s expertise, including income security advocacy, issues affecting dual eligibles (those on both Medicare and Medicaid), and Medicaid issues around community-based options for long-term care, including assisted living. NSCLC attorneys will work very closely with prospective fellowship applicants to develop a fellowship project that meshes NSCLC priorities with the applicant’s interests and talents. We have hosted Borchard and Skadden fellows in the past, and hope to continue and expand our fellowship program.
Qualifications: The ideal candidate has a genuine and documented commitment to working for poor and underserved populations, high-caliber legal research and writing skills, and the ability to take initiative and work independently. A commitment to a public interest career is extremely desirable. Individuals with ties to low-income, racial/ethnic minority communities, and other underserved populations are encouraged to apply.
Interested candidates are instructed to send a cover letter, resume, law school transcript, writing sample, and a list of three references to Katrina Cohens, email@example.com.
Further, substantive questions about the fellowship program can be directed to NSCLC's current Skadden Fellow, Hannah Weinberger-Divack, at firstname.lastname@example.org.
Deadline for applications for 2015 positions: Aug. 25, 2014.