Elder Law Prof Blog

Doctors Discussing Driving with Patients

One of the more lively class discussions in my seminar occurs when we take up the issue of older drivers.  All of my students have had some experience with an older driver, and it provides me the opportunity to cover the laws regarding driving as well as the implications of loss of driving privileges.

The Cleveland Clinic Journal of Medicine recently ran a column on when doctors should discuss driving issues with their elder patients .When should I discuss driving with my older patients? discusses different medical conditions and possible implications on safe driving. The article also covers the importance of being able to drive (at least to those of us in the U.S.) and the impact on an individual when the ability to drive is lost.  The article explains the value of using driver evaluations:

It is therefore understandable for health care providers to feel reluctant or uncomfortable counseling older adults to give up their driving privileges. A health care provider who identifies driving safety concerns can refer a patient to a geriatrician        for further risk assessment or to a certified driver rehabilitation specialist (CDRS) for a driving evaluation. A CDRS will also offer the patient and caregiver information on local resources for transportation alternatives. A list of local CDRSs can be found on the Association for Driver Rehabilitation Specialists website (www.aded.net). Many hospitals have occupational therapists who are CDRSs.

The article mentions that the evaluation includes not only an assessment of the "rules of the road" but also a cognitive evaluation as well as a driving test if the evaluator deems one necessary.  There is a possibility that Medicare may provide payment; that "depends on diagnosis and the state carrier."

Why an Experienced Elder Law Attorney Can Make a Difference...

On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute.  The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs.  The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.

When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before.  However, the Ohio case was a new spin on that troublesome topic.  According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission.  One document was an admission agreement that the son signed, pledging:

“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”

The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”

The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.

The Ohio court leaves me with another question, not directly addressed in the decision.  Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks?  Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted?  Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.

At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference. 

For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.” 

I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary.  Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident.  Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.

With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!)  Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice. 

In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course.  The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond. 

Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.  

Maryland Court of Appeals Confirms Disbarment of "Elder Law" Attorney

On December 23, 2014, the Maryland Court of Appeals issued a detailed opinion explaining the disbarment of Attorney Michael C. Hodes, in proceedings initiated by the state's Attorney Grievance Commission. Hodes, an attorney with 39 years of experience, reportedly held himself out as concentrating his practice in estate planning and elder law. At the core of the charges against Hodes was "self-dealing," by improperly using money from a specific decedent's account and over $270,00 from a related trust account for his own needs.  He attempted to avoid disbarment, arguing that the sums should be characterized as a loan, that he had made restitution and his alleged misconduct was not in his role as an "attorney."

The Court concluded, however, that an attorney can be disciplined for violations of Rules of Professional Conduct, including conflict of interest, arising from conduct as an agent and trustee for an irrevocable trust created from assets from a decedent's estate, even if the attorney had been acting in a personal or non-legal capacity. 

Hodes argued as mitigation that he had an established reputation as a trustworthy and knowledgeable attorney, with no prior history of disciplinary sanctions, and pointed to his roles as an adjunct professor at two area law schools and his role as a regular commentator on "elder law" for the radio.  The court was unpersuaded, observing, "Yet, with all of his knowledge and experience in the practice areas of elder law and estates and trusts, Respondent displayed a remarkable lack of insight into his professional responsibility as an attorney and fiduciary. He continued to insist that he had taken a 'loan' of $270,000.00 from the Trust in order to pay personal bills, as if this form of self-dealing was acceptable."

The Maryland Court of Appeals also rejected Hodes' argument that the sanction of disbarment was excessive, as compared to prior disciplinary cases. The Court noted that to the extent the cases could be cited as permitting leniency for intentional misconduct, they "are no longer part of our modern attorney discipline jurisprudence."

For more, see here (Baltimore Business Journal), describing Michael Hodes' future plans. 

Individualized Activities Helpful for Individuals with Dementia: Research Study

Researchers at the Polisher Institute at the Abramson Center for Jewish Life have published the results of a controlled study on use of non-drug approaches to behavioral assistance for individuals with dementia. 

The study, titled "A Randomized Controlled Trial for an Individualized Positive Psychosocial Intervention for the Affective and Behavioral Symptoms of Dementia in Nursing Home Residents," is published in the January issue of the Journal of Gerontology (Series B: Psychological Sciences), which is accessible via subscription.  From the abstract:

Objectives. This randomized controlled study tested the effectiveness of individualized activities, led by certified nursing assistants (CNAs), to increase positive and reduce negative affect and behavior among nursing home residents with dementia.

 

Method. Nursing home residents with mild to advanced dementia (N = 180) were randomly assigned to usual care (UC, n = 93) or 1 of 2 experimental conditions. Residents in the attention control group (AC, N = 43) participated in standardized one-to-one activities with their CNAs. Individualized Positive Psychosocial Intervention (IPPI) participants (n = 44) received a CNA-led activity matched to their interests and ability. Outcomes were residents’ positive and negative affect and verbal and nonverbal behavior.

 

Results. The IPPI and AC groups experienced similar benefits—more pleasure, alertness, engagement, positive touch, and positive verbal behavior—compared with UC. The AC group displayed more anger, uncooperativeness, and very negative verbal behavior than UC or IPPI.

                 

Discussion. This study demonstrates the value of individualized activities for nursing home residents with dementia. In a stringent test, residents were happier and less angry during a customized intervention compared with a standardized intervention. Even brief individualized CNA-led activities bring pleasure to nursing home residents and constitute an effective strategy to enhance positive affect and engagement in persons with dementia.

It would be interesting to know more about what appears to be a potentially significant difference not only between the "standardized" interventions and the "individualized" approaches, but also between the different types of individualized approaches.                   

College Broadcast Student's Media Project Focuses on Filial Laws

Christopher Robb is in his final year at Westminster College in Pennsylvania and for his senior Media project he tackled "filial laws."  His impressive work included researching the history of such laws and studying recent court cases in Pennsylvania.  He interviewed and filmed a host of individuals from across the state who have experience with recent trends in use of filial support laws by nursing homes to seek payment from adult children for bills not satisfied by the resident's resources, insurance or Medicaid.  Chris Robb's resulting 15 minute video is titled, "Am I My Mother's Keeper?"  Thank you for sharing it with the Elder Law Prof Blog!

 

The Fascinating, Troubling Case of In Re Fundamental Long-Term Care Inc.

I have written before about allegations of "bust out schemes" in long-term care companies.  The theory is that operators of businesses facing huge obligations, especially obligations arising from court judgments based on negligent care in nursing homes, try to transfer and hide assets to avoid paying the legal damages.  Allegations of this form of fraud are at the heart of a complicated case, In re Fundamental Long-Term Care Inc., pending in the bankruptcy courts of Florida,  focused on operations in that state, but also in Illinois and Maryland.  The allegations are wild, with alleged manipulation of an elderly graphic artist, now himself a resident of a nursing home, to "buy" the shell company that was saddled with $119 million in default judgments arising out of two wrongful death cases dating back to 2003, plus perhaps as many as 150 additional, pending claims. 

What's the latest news on the case, as reported in The Chicago Times and the on-line Insurance Journal? 

The presiding U.S. Bankruptcy Court judge, Michael Williamson in Tampa, Florida,  has announced a "tentative ruling" that owners of the multistate chain of nursing homes have committed fraud by transferring liabilities to an asset-less shell company, in order to isolate responsibility for more than $2 billion in jury verdicts.  At the same time, the judge apparently indicated he sees no evidence to hold a private equity firm -- and probably the defendant with the deepest pockets -- liable for the fraud commited by the nursing home companies it provided with financing. Apparently the judge's "tentative ruling" is intended to encourage the parties remaining on both sides of the case to be realistic during mediation sessions ordered by the court to take place in January. 

In addition to the extraordinary dollars involved in the alleged fraud, media sources have covered the case closely because Illinois Governor Elect Bruce Rauner was once a manager of an investment firm involved in financing for the nursing home chain.   Governor-to-Be Rauner has not been a defendant in the liability cases, and has strongly denied any knowledge or responsibility for the alleged fraud.

The case is In re Fundamental Long-Term Care Inc., 11-bk-22258, 13-ap-00893, U.S. Bankruptcy Court, Middle District of Florida.

With the Hiatus in "Serial" Podcasts, How to Keep Your Listening Ears Happy?

Okay, I will admit to being one of the addicts for the podcast "Serial" episodes.  If you haven't listened yet, the first season tracked an investigaton of a criminal case, posing the question of whether a young man who was convicted as a teenager of murdering his former girlfriend might be entitled to post-conviction relief.  Listening to the well-crafted episodes and compelling voices of the defendant and other individuals connected the Baltimore events has been a great way to rest my semester-weary eyes, while still considering important questions of law, ethics, justice, professional obligations of attorneys, race, and ethnicity.  

But the last episode for 2014 is now behind us.  What to listen to now? Especially while we actually have some down time between semesters-- and might need a break from our own families!?  

Well, here is another interesting option --  Life of the Law, a bi-weekly "sound rich" podcast series exploring cutting edge topics.   The episode on "New Frontiers of Family Law" immediately gave me a new term - polyamorous relationships -- and surprising new things to think about for my course on Wills, Trusts & Estates.  The episodes vary in length, some nicely as short as 15 minutes.

More Good Reasons to Exercise Regularly (Hint: It Helps Your Brain)

A timely reminder during this holiday season, and as we plan our New Year's Resolutions.  Exercise regularly!  From the Washington Post, reports of research from the University of Wisconsin School of Medicine and Public Health: 

Evidence continues to accumulate that physical activity can help hold off the changes in the brain associated with Alzheimer's Disease, and perhaps the devastating symptoms  of the disease itself. The latest information comes from researchers at the University of Wisconsin School of Medicine and Public Health, who looked at 317 late-middle aged adults and determined that those who exercised five times a week or more had fewer of the age-related changes in the brain that are associated with the disease, and did better on cognitive tests.

 

Age remains the single greatest risk factor for Alzheimer's, greater even than having the gene found in many people with the disease, the study confirmed. But "what we have shown here is that physical activity diminishes the deleterious influence of age," said  Ozioma Okonkwo, an assistant professor of medicine at the school who led the study.

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More evidence that exercise can help fight Alzheimer's disease

The Need for Granny Pads vs. "Parochial" Land Use Concerns

The amazing things you find when you start cleaning your office!  Here's a find.  Notre Dame Law Professors Margaret Brinig and Nichole Stelle Garnett wrote a great piece for The Urban Lawyer on what are sometimes called "granny pads," or more formally, "accessory dwelling units."  The authors track reform measures enacted in at least 12 states that either enable or mandate authority for such units, thus preventing local building or zoning limitations from restricting landowners to "one unit" per lot.  Additional reforms have occured at some municipal levels.  They point to experiences in California as a cautionary tale, however, suggesting that "local parochialism remains alive and well in American zoning codes, often buried in regulatory details that escape the attention of advocates and academics alike."

Here's a link to the full article, "A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism."    I'm embarrassed to admit this particular journal issue was on the 2013 level of my cleaning efforts.  Who knows what other gems may be hiding!

"Smart Talk" about Guardianships, POAs, Elder Abuse & Access to Justice in the Courts

Here is a link to a podcast for a Smart Talk program from WITF Public Radio, where Zygmont Pines, Esq., Court Administrator for the Commonwealth of Pennsylvania and I were invited to talk about quite a few "hot" topics from Pennsylvania Supreme Court's Elder Law Task Force.  The Task Force released its big Report and Recommendations last month. 

The topics strike me as quite universal, not Pennsylvania specific.  If you make it to the last few minutes (or skip ahead), there is an especially poignant moment with a family caregiver, who tells a real life story that will strike a chord with many. 

 

 

Is Your Job Good for Your Brain?

The journal Neurology, ran an article about a recent study on the impact occupations have on workers' brains.  Occupational complexity and lifetime cognitive abilities opens with a recognition that "[t]here is a growing body of research suggesting that more stimulating lifestyles, including more complex work environments, are associated with better cognitive outcomes in later life." (citations omitted).

In the discussion, the authors note that "[t]he ... findings support the hypothesis that higher complexity of work is associated with later-life cognitive performance...."  After discussing the specifics of the study, the authors offer this summary "the current study  supports an association between more complex lifetime occupations and better cognitive abilities in later life. Of note, the evidence in favor of the differential preservation of cognitive abilities has been examined in the context of accounting for the likelihood of persevered differentiation, a major issue in the search for determinants of cognitive aging."

The full text of the article is available here.

Looking for a Movie or Book this Season? Don't Shy Away From These....

New York Times Op-Ed Columnist Frank Bruni recalls his own reluctance to confront the realities of Alzheimer's, offering a touching account of his own grandmother many years ago, whose condition caused him to turn away.  But as he also points out in his column, "Confronting an Ugly Killer," "the world is different now.  Much of the unwarranted shame surrounding Alzheimer's has lifted. People are examining it with new candor and empathy."

As evidence for his observation, he points to the latest movie, Still Alice, with Oscar buzz already starting for Julianne Moore's performance.

As further evidence, he lists the new documentary "Glenn Campbell: I'll Be Me" and a best selling, celebrated 2014 novel, "We Are Not Ourselves" by Matthew Tomas. 

Related articles

Trailer alert: Julianne Moore's awards bait, 'Still Alice'

'Still Alice' Trailer: Will Alzheimer's Drama Nab Julianne Moore Her First Oscar?

Pennsylvanians Face New Requirements for Effective POAs Written in 2015

Starting on January 1, 2015, Pennsylvanians have new rules that apply in order to create effective Powers of Attorney (POAs).  The changes are wrought by Act 95 of 2014, and were stimulated in large part by a case decided in 2010 that invalidated a POA that had been executed under suspicious circumstances.  We discussed the background here.

There are important, and sometimes subtle options for principals to consider in accepting or rejecting the "default rules" in the Act.  All of the changes were intended to provide better protections for principals from abuse by agents, but not all principals will want those protections, particularly if it means more risk of third-party intervention or oversight.  For an up-to-date and thoughtful summary of the changes and implications, read ElderLawGuy Jeff Marshall's recent blog post on "What You Need to Know."

For attorneys seeking the latest information on POA drafting and best practices, the Pennsylvania Bar Institute is offering several CLE programs around the state in January 2015.

Rural Vets Get Care via TeleMedicine

Reuters ran an interesting story last month about the use of telemedicine to deliver health care to rural vets. The story, For rural vets with PTSD, Telemedicine may help is based on a study published in the November, 2014 JAMA Psychiatry

The Reuters article explains a new study that shows using telephones and videochat can be helpful in the treatment of PTSD for these vets. This most recent study  "included 265 middle-aged vets with severe PTSD symptoms at one of the outpatient clinics without onsite psychiatrists or psychologists from 2009 through 2011.” Recruited from 3 different areas of the country, 50% of the vets “received the outpatient clinic’s ordinary care” while the remainder had access to “an additional care team at a larger medical center via telemedicine.”  This team included a variety of professionals, such as pharmacists and nurse care managers who called the vets, and video-chat consults with psychiatrists who subsequently provided “feedback and treatment recommendations to providers at the clinic through electronic medical records.” Video chat was also used by psychologists for “cognitive processing therapy, a specific behavioral therapy developed to treat PTSD…”

The story notes that the technology isn’t right for every vet, but a large number in the study were happy with it and that further research is needed to in order to determine the path to widespread use.

The JAMA article offers this conclusion “Telemedicine-based collaborative care can successfully engage rural veterans in evidence-based psychotherapy to improve PTSD outcomes.” The JAMA article abstract is available here, and the full article is available by subscription or purchase.

CMS Invites Comments to Proposed Rule Recognizing Same-Sex Marriages

The Centers for Medicare and Medicaid Services (CMS) recently published a proposed rule that would make equal treatment for same-sex marriages (recognized under state law) a condition for all providers or suppliers seeking federal funding.  CMS also released interim guidance for long-term care surveyors, as part of the agency's implementation of the Supreme Court's decision in U.S. v. Windsor,

Comments to the prosed rule are due by February 10, 2015.  The National Senior Citizens Law Center provides additional information regarding its advocacy on this important topic, and on the proposed regulations and policies on its Center website, here.

Related articles

Post-DOMA rule proposed for hospice care, nursing homes

New Papers from University of Michigan's Retirement Research Center

The University of Michigan's Retirement Research Center regularly releases working papers and policy pieces that explore issues relevant to lawyers and legal academics.  From MRRC's most recent news release, here are some interesting topics:

• “Does Protecting Older Workers from Discrimination Make It Harder to Get Hired?” by David Neumark, Joanne Song and Patrick Button. Abstract
• “Will They Take the Money and Work? An Empirical Analysis of People’s Willingness to Delay Claiming Social Security Benefits for a Lump Sum” by Raimond H. Maurer, Olivia S. Mitchell, Ralph Rogalla and Tatjana Schimetschek. Abstract
• “Long-Run Determinants of Intergenerational Transfers” by John Karl Scholz, Ananth Seshadri and Kamil Sicinski. Abstract

On the last item, I was intrigued by the opening lines for the abstract: 

"Understanding whether the elderly are saving adequately is fundamental to understanding whether elderly households are able to maintain reasonable living standards. One factor that affects wealth accumulation is the extent to which parents need to support children and the extent to which children need to support parents. The presence of Social Security may affect intergenerational transfers, but the extent to which it ‘crowds out’ transfers from parents to children is controversial...."

For more studies from MRRC, you  can review the longer list of current publications and upcoming programs here. 

 

Might the U.S. Have Important Lessons to Learn from Cuba About Healthcare and Aging?

Having lived several years in Miami, I have long had a bit of fascination with the island nation of Cuba. So close, and yet so far away. While working in Ireland in 2010, my interest increased, as I learned more about modern-day Cuba from Dr. Una Lynch, a public health specialist, who had frequently traveled and worked in Cuba.  She gave a presentation that opened my eyes to Cuba's WHO statistics, its reputation for a "first world" health care system, and the positve outcomes on aging and longevity.  See here and here for more comparative discussions on Cuban health care.

It was a happy surprise for many to learn of the dramatic plans to restore diplomatic relations between the U.S. and Cuba.  At the same time, I suspect that some of my Cuban-American friends in Miami may be torn, especially as many of their families were forced to flee Havana years ago. One friend has akready reacted happily, commenting,  "This is a bold move and long overdue." Feliz aňo nuevo!

Congress Passes Federal ABLE Act to Help Funding for Persons with Disabilities

Reason for celebration.  Not only did Congress act, but it came together to help those with disabilities.  The Achieving a Better Life Experience (ABLE) Act cleared the Senate on Tuesday on a vote of 76 to 16, which is the last step on its way to the President.  As Gail Russell Chaddok of the Christian Science Monitor observes:

"But the reasons for its success go deeper and point to potential bipartisan paths forward on one of Congress’s most intractable issues: entitlement reform. The aim of the ABLE Act is to remove bureaucratic obstacles to help Americans save their own money to help pay for long-term care. To some activists, that could provide a template for reforming Medicare and Social Security in the next Congress.  

 

The ABLE Act helps people with disabilities save for college and retirement. Under current law, a child diagnosed with a disability can’t have assets worth more than $2,000 or earn more than $680 per month without forfeiting eligibility for government programs like Medicaid. The ABLE Act would allow a tax-free savings account up to $100,000 to pay for disability-related expenses."

 

Related articles

Are tax-free ABLE accounts the right financial solution for the disabled?

Congress Agrees to Widen Federal Help for Disabled

Congress Approves Sweeping Legislation to Help America's Disabled

Stanford Releases New Study on Factors That May Affect Development of Alzhemier's

Researchers at Stanford Unviersity School of Medicine have released their latest study of brain cell degeneration in mice, suggesting the potential importance of blocking the influence of certain molecular processes associated with inflamation and Alzheimer's disease:

“'Microglia are the brain’s beat cops,' said Katrin Andreasson, MD, professor of neurology and neurological sciences and the study’s senior author. 'Our experiments show that keeping them on the right track counters memory loss and preserves healthy brain physiology.'”

Here is Stanford's new release, summarizing the study published this month in the Journal of Clinical Investigation.  Hat tip to Dickinson Law's Professor Laurel Terry for sharing this news.

Related articles

Has Stanford University found a cure for Alzheimer's disease?

Common Disability for Elder Americans

The Census Bureau released a report covering the survey results from the American Community Survey on the most common disability for elder Americans. Older Americans with a Disability: 2008-2012  was issued in December 2014. According to the article, almost 2/3 of elders with disabilities report a problem with mobility (e.g.,  climbing or walking). A graphic that shows the number of elders with a disability by county is also available.

The report concludes with several points, one of which is that "[t]he future of disability among older Americans will be affected by how this country prepares for and manages a complex array of demographic, fiscal, medical, technological, and other developments that will unfold in the next several decades." (citations omitted)