Elder Law Prof Blog

And Now, Some Happier News About Nursing Homes...

It strikes me that a lot of my posts this week about long-term care have been "bad news," especially regarding nursing homes.  It is a good time for me to share a much happier view from a daughter who first wrote to me about her fears as an adult daughter -- with health care concerns of her own -- living 3,000 miles away from her father, who at 90+ was in crisis and needed daily help, but was unable to afford it.  

Her dad had a local person as an agent, a long-time friend's child who held "power of attorney." But that individual seemed overwhelmed.  When the daughter wrote to me, I encouraged her to talk to her father, who still had capacity.  Four months later, the daughter wrote back to give the results, including the very good news that her father was happier. She gave me permission to share details here:

"Since last September ... I was able to get my father completely on Medicaid and everything went through well with his application, etc.  He got accepted the first time!  I hear that can be rare. Additionally, my Dad met with his attorney and revised his POA, making me his agent and allowing me to do many things, even from afar.

 

Dad's very happy now and quite healthy (at age 91) in his new skilled nursing home environment in Pennsylvania.  Even from 3,000 miles away, I am still very connected to him, as well as the wonderful staff at the nursing home.  My Dad is now 3rd generation of his family to stay at that same nursing home. Additionally, he now has the company of his youngest sister, my Aunt, who has been at the home for the last 10 years.  They are together and enjoying each other's company every day."

A short time later, the daughter wrote again:

"I have such peace of mind, and heart, knowing this is the right place for Dad, plus, he has so much more socialization now and is no long isolated and all alone in his apartment where he was before.  (I no longer lay awake every night worried about him with knots in my stomach.) Plus, I forgot to mention the facility has a resident dog on site, a golden retriever named 'Magoo,' and, boy, does he brighten everyone's day."

This daughter's words are an important reminder that the "right" place, including the right nursing home, can make dramatic improvement in the lives of older persons, especially where frailty and isolation are the concerns. Thank you, Patti, for sharing your "happier" news.

Postscript:  Patti allowed us to share a photo of her and her father, and the story of their relationship is written in their smiles. 

"Still Alice" As Springboard For Family Conversation

My colleague and great friend, Professor Laurel Terry, shared Paul Sullivan's Wealth Matters column from the New York Times, that uses the new movie Still Alice as a reminder of the importance of family conversation:

"For anyone who has ever watched a family member disappear into Alzheimer’s, Ms. Moore’s performance is gripping, particularly as her tricks to stall her decline inevitably fail and the later stages of the disease consume her. Yet the movie is also a great vessel to explore many of the financial issues that families need to address when someone is diagnosed with Alzheimer’s or any other disease that causes cognitive impairment."

The column continues with thoughts from financial professionals, who sometimes observe the early signs of a long-time client's decline:

"Thomas Mingone, managing partner at Capital Management Group of New York, said he had clients whose mental slide had been apparent to the advisers, accountants and lawyers in the room but not to the client. Since advisers are bound by a fiduciary duty to protect their clients’ privacy, Mr. Mingone said he can’t simply call up their children to let them know. With a client who seems to be slipping but lives alone and sees family members infrequently, Mr. Mingone said he suggests a family meeting, which allows him to connect with his client’s children. Other times, he said, just asking clients how they are doing brings the problem out.

 

'Sometimes when you bring this up with clients, it’s a relief to them,' he said."

For additional realities, including the problem of end-of-life decision-making and care choices, read "In Alzheimer's Cases, Financial Ruin and Abuse Are Always Lurking." 

Additional Discussion of Use of Guardianships as Nursing Home Collection Tool

On Monday, we linked to the front-page New York Times article by Nina Bernstein, "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."  Suffice it to say, I've been hearing a lot about the topic, from many sources.  In hearing from law professors and lawyers with different perspectives, it appears there are at least three important questions framed by the article. Each may take additional investigation to fully address, whether in New York or other states where similar concerns have been raised.

In one of the cases described by the NYT, a court opinion addresses what appears to be the nursing home's narrow "collection" purpose in seeking a guardianship.  The article summarizes:

"Last year Justice [Alexander W.] Hunter did appoint a guardian in response to a petition by Hebrew Home for the Aged at Riverdale, but in his scathing 11-page decision, he directed the guardian to investigate and to consider referring the case for criminal prosecution of financial exploitation.

 

The decision describes a 94-year-old resident with a bank balance of $240,000 who had been unable to go home after rehabilitative treatment because of a fire in her co-op apartment; her only regular visitors were real estate agents who wanted her to sell. After Hebrew Home’s own doctor evaluated her as incapable of making financial decisions, the decision says, the nursing home collected a $50,000 check from her; it sued her when she refused to continue writing checks, then filed for guardianship. 'It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties — parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid,'  he wrote.

 

Jennifer Cona, a lawyer for the nursing home, called the decision 'grossly unfair to Hebrew Home,'  but said she could not discuss details because the record was sealed."

Here is a link to the full opinion in the case, publically available on Justia.com.  

Two additional cases raise similar issues and are referenced in the New York Times.  Both have opinions by  Judge Hunter:

Matter of G. S., 17 Misc.3d 303; 841 N.Y.S. 2d 428 (Sup. Ct., New York County 2007), and

Matter of S.K., 13 Misc.3d 1045; 827 N.Y.S.2d 554 (Sup. Ct. Bronx Cty., 2006).

In both cases, Judge Hunter concluded the purpose for which the guardianship petitions were filed by the nursing home as petitioner was "not the legislature’s intended purpose when Article 81 of the Mental Health Law was enacted in 1993.” In each case, the judge assessed fees against the petitioner nursing home. In the 2007 case of G.S., the court observed, "To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate."

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Third Circuit: Officers & Directors of Bankrupt Nursing Home Liable for "Deepening Insolvency" But Punitive Damages Not Proven re Directors

We reported in December 2013 about the long saga of the Lemington Home for the Aged, a troubled nursing home that sought bankruptcy court protection in 2010.  Now, in a 2015 decision by the Third Circuit Court of Appeals, following an appeal from the March 2013 jury verdict that awarded the Home's unsecured creditors a total of $5.75 million, key issues about that damage award are addressed.

Judge Vanaskie, who had taken the lead on an earlier appellate opinion regarding the officers and directors, provided some relief for the five former directors on the nonprofit organization's board, who faced joint and several liability for more than $3.5 million in punitive damages.  The opinion begins with a concise summary of the outcome:

"This lawsuit, which concerns the mismanagement of a Pittsburgh-area nursing home and its ensuing bankruptcy, comes before the Court for a third time on appeal. In the present appeal, the Defendants, two former Officers and fourteen former Directors of the nursing home, present several challenges to the jury's verdict, which found them liable for breach of fiduciary duties and deepening insolvency. The jury also imposed punitive damages against the two Officers and five of the Directors.

 

We will affirm the jury's liability findings and the punitive damages award imposed against the Administrator and the Chief Financial Officer of the nursing home. We will, however, vacate the jury's award of punitive damages against the Defendants who served on the nursing home's Board of Directors. We conclude that the punitive damages award against those Defendants was not supported by evidence sufficient to establish that they acted with 'malice, vindictiveness and a wholly wanton disregard of the rights of others .' Smith v. Renaut, 387 Pa. Super. 299, 564 A.2d 188, 193 (Pa. Super. Ct. 1989) (citations omitted)."

The full opinion, filed on January 26, 2015 for In re Lemington Home for the Aged, is well worth reading, especially for the additional analysis of how individual officers and directors of a corporation (even a nonprofit corporation), can face personal liability for contributing to  "deepening insolvency," a form of "fraudulent expansion of corporate debt."  At the same time, the opinion analyzes the active misconduct of the CEO and CFO of the company that supported the award of punitive damages, as opposed to the absence of proof of  "outrageous or malicious conduct" that precluded the directors' liability for same.

Related articles

Appellate court upholds most of jury's verdict against officials of Lemington Center

ABA Commission Fellow Examines Restoration of Rights for Adults Under Guardianship

Jenica Cassidy, a recent graduate of Wake Forest University School of Law, has been serving as a Fellow with the ABA Commission on Law and Aging since August 2014.  It appears she's been making very good use of her time, working on a study that examines termination of guardianships and restoration of rights for adults. 

BiFocal, the journal of the ABA Commission is publishing a short overview of the study -- a sneak peek -- in its February issue. What I especially appreciate is the clear documentation provided by the author on the methodology, including "(1) statutory review; (2) case law search and analysis; (3) online questionnaires for attorneys and judges; and (4) stakeholder interviews." Jenica and the Commission staff analyzed 104 cases, including 57 cases occurring between 1984 and 2014, where individuals petitioned for restoration of rights.  The study highlights the challenges that face any individual seeking to terminate a guardianship, as well as the impact of guardian testimony or opposition to such petitions. 

The full report will be published in the Elder Law Journal (University of Illinois), but in the meantime, read the intriguing summary available through BiFocal.  

Should the Senior Housing Market Segment Known as "CCRC" Change Its Name?

LeadingAge, an senior housing and senior care organization that often takes a prominent advocacy role on behalf of nonprofit Continuing Care Retirement Communities, has a "NameStorm Survey" underway.  The survey explores whether another name (and presumably an acronym other than CCRC) would better "resonate with consumers?" Everyone is invited to weigh-in, including current residents at CCRCs.

Here's the link to the reasons for the brainstorming of names, and here is a link to the on-line survey, that  takes just a few minutes.  The survey window closes on February 15, 2015.

Congressional Leaders Seek Answers on Enforcement of Medicaid Asset Transfer Rules

Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits.   They write:

"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA.  Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws.  Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law.  California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions.  As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."

The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"

Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.

For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010. 

This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court.  On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.  

The Importance of Checks & Balances in Law Firm Management, Including Handling Of Elder Client Funds

A news release from the U.S. Attorney's Office in Western Virginia provides an important reminder of the importance for every lawyer of having a system of checks and balances for law office management, to prevent any single employee from having unsupervised access or exclusive control over client trust funds.  On December 15, 2014, a 34-year-old legal assistant at a law firm in Virginia was sentenced to 24 months in federal prison for stealing more than $183k from an elderly client of the law firm.  The lawyer who employed that assistant had been named by the county to serve as the conservator for the elderly woman who became the victim.  According to the news release, the attorney "allowed [the legal assistant] to access the elderly woman's bank accounts,...but [the assistant] did not have signature authority on the accounts."

According to the news release, the employer "to date... has repaid $104,990.15." One suspects the law firm (or, its insurer) will have to pay the whole tab, even though the sentencing order imposes an obligation of restitution for the full sum on the legal assistant. 

NYT: Nursing Homes Seek Guardianships (And Fees) To Collect Unpaid Nursing Home Costs

In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities.  The trigger? Unpaid nursing home fees.  

Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."  

NYT  and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:

"Few people are aware that a nursing home can take such a step.  Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality.  But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

 

In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes.  Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage.  But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."

While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.

New York is not alone in seeing guardianship cases initiated by nursing homes.  In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.

For more, read "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."

Related articles

To Collect Debts, Nursing Home Is Seizing Control Over Patients

Justice in Aging: New Name plus Long-Standing Commitment

National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:

"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country.  And it is a LOT easier to say and remember!

 

Our new name will be Justice in Aging.  Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.org.  We will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same.  As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI." 

We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation. 

Proposed Regs from the VA

The Federal Register on January 23, 2015 included a proposed rule from the VA on Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.  Here is an excerpt from the executive summary

This proposed rulemaking would amend regulations governing VA's needs-based pension programs to promote consistency in benefit decisions, reduce opportunities for attorneys and financial advisors to take advantage of pension claimants, and preserve the integrity of the pension program. The revised regulations would promote consistent decisions by establishing a bright-line net worth limit and re-defining net worth as the sum of assets and annual income. The revised regulations would also promote consistent decisions by defining in regulations those unreimbursed medical expenses that VA will deduct from a claimant's annual income for purposes of determining a claimant's annual pension payment.

By establishing in regulations a look-back and penalty period for claimants who transfer assets before applying for pension to create the appearance of economic need where it does not exist, the revised rules would reduce opportunities for financial advisors to provide advice for the restructuring of assets that, in many cases, renders the claimant ineligible for other needs-based benefits. Establishing a look-backand penalty period for pre-application transfers of assets would also preserve the integrity of the pension program by ensuring that VA only pays the benefit to those with genuine need.

Comments are due by March 24, 2015.

How Do You Tell Family You Have Alzheimer's?

NPR's All Things Considered began a series on January 24th that follows Greg O'Brien's journey with early-onset Alzheimer's, beginning with his diagnosis at age 59.  There is lots of important stuff here, including the need for family dialogue and understanding.  One dialogue is between the father and son, about why it was important for the son to serve as his  dad's agent under a Power of Attorney. 

Here's an excerpt from O'Brien's powerful account:

"How do you tell your kids that you got Alzheimer's? It sucks.

 

I had planned this family meeting, so all the kids were home and we're going to go out to dinner. I knew I had to talk beforehand.So I'm in the bathroom, you know I felt a little bit like Luca Brasi in The Godfather, practicing my speech. 'On the day of your daughter's wedding....'

 

I could hear, 'Daddy,where are you?' So I came out and I went over the fact that their great-grandfather, my grandfather, had died of Alzheimer's and my mother, which they knew. And now it's come for me...."

To read or listen to the series on public radio or podcast, follow the NPR links here.  O'Brien also has a book, On Pluto - Inside the Mind of Alzheimer's.

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'How Do You Tell Your Kids That You Got Alzheimer's?'

From the Cover of Rolling Stone to...

Bob Dylan goes from the cover of Rolling Stone magazine ... to the cover of AARP Magazine....  More signs that the times they are a changin' for elder boomers! 

Oregon's Law That Mandates "Elder Abuse Reporting" by Lawyers Now in Effect

As outlined in the Bar Counsel column of the January issue of the Oregon State Bar Bulletin, on January 1, 2015, lawyers became mandated reporters of suspected elder abuse, including physical abuse, neglect, verbal abuse, sexual abuse, and financial exploitation.  Deputy General Counsel Amber Hollister for the Oregon State Bar explains:

"Lawyers across Oregon are talking about elder abuse reporting.  On Jan. 1, 2015, legislation took effect making all Oregon lawyers mandatory reporters of elder abuse.  HB 2205 (2013).  As with any new law, there are still many questions about how the new requirements will apply and impact lawyers' day-to-day practice....

 

The new reporting requirement was enacted at the recommendation of the Oregon Elder Abuse Prevention Work Group, which was tasked with studying how to better protect older Oregonians.  As state Rep. Val Hoyle notes, 'for four years, the work group has focused on protecting some of Oregon's most vulnerable citizens.  Integrating lawyers into Oregon's elder abuse safety net as mandatory reporters will provide our state with 19,000 additional advocates.'"

Can Private Parties Sue to Challenge Underfunding of Medicaid-Care? Supreme Court Hears Oral Argument

Oral argument on Armstrong v. Exceptional Child Care Center before the U.S. Supreme Court on January 20 highlighted important issues of private standing to challenge funding under state-federal Medicaid programs. "The case raises the issue of whether Medicaid providers can challenge a state law in federal court on the basis that it violates the federal Medicaid Act and therefore is preempted by the Supremacy Clause of the U.S. Constitution," as summarized and explored by the Kaiser Family Foundation. 

Additional commentary on the oral arguments is provided on Volokh Conspiracy, via the Washington Post.  

Invisible Men and Women - and Lessons from One Who "Awoke"

If you have a loved one with dementia, particularly if you have watched him or her lose the power to communicate with words, perhaps you have wondered, what are they thinking?  What are they hearing when you talk with them? Are they happy?  Sad? Is confusion the dominant, or only, feeling? 

You sometimes get hints of how they feel, including recognition they may feel profoundly trapped.  I knew one man who, when he could not find the words, would shake his head and howl.  I knew one woman who, when she was younger, used to have clever catch-phrases. By the time she was in her 80s, she had lost the ability to say a favorite phrase but she would say two words -- "Head up"--  over and over. She wanted you to help her complete the phrase.  Her caregivers did not know that she had given hundreds of children horseback riding lessons, and misunderstood her words as a warning, perhaps motivated by paranoia. But, as one of her former students, when I heard her say "Head up" during my visit, I responded -- almost automatically -- with "Heels down." It is an equestrian's mantra for balanced riding.  And she smiled as if we had just completed reciting the Gettysburg Address together. 

With that background, I was captivated by a recent public radio broadcast, now available on an Invisibilia podcast, about the "Locked-In Man."  Following an illness and a coma as a child, Martin Pistorius began to "awaken" during his teens,  but for more than 10 additional years he was unable to talk, or even to signal to people caring for him -- or abusing him -- that he was "aware" of what was happening. 

Imagine being trapped in front of reruns of  "Barney" (television's purple dinosaur) day after day after day, for year after year.  I know a senior care facility that seems to have the "King and I" playing on a television around the clock.  Could Yul Brynner's singing be just as much torture as Barney's for someone who is unable to say "not again?"

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What About Inadequately Funded Municipal and Local Public Pensions?

We have written many posts about underfunded benefit programs at the federal and state levels (see e.g., here), but another looming problem is underfunding of pension programs at the local levels.  The potentially affected employees include firefighters and sanitation workers and police officers. 

This week WITF-Radio's Smart Talk program explored the issue in Pennsylvania:

"More than 500 Pennsylvania municipalities' pension funds are considered "distressed" because they're funded at less than 90%.  Some Pennsylvania cities, boroughs, and townships currently have pension funds at lower than 50%. State law impacts public employees' ability to negotiate their contracts, making this issue of particular concern to lawmakers in Harrisburg.

 

Last week, Pennsylvania Auditor General Eugene DePasquale announced that in total Pennsylvania's municipal pension funds have a $7.7 billion liability. Legislation is expected to be proposed this year that will seek to eliminate some of the liability over the long term."

It seems unlikely that Pennsylvania is the only state with a local-level pension funding problem.

The primary speaker on the program, Pennsylvania Municipal League Executive Director Richard Schuettler, pointed to an interesting aspect of the problem, what he sees as unrealistic decisions by arbitrators in collective bargaining labor disputes over pay and retirement benefits.

For the full radio program, go to the podcast here. 

Related articles

Municipal pension plans in more trouble, state auditor says

Municipal pension plans in more trouble, state auditor says

Auditor General report says municipal pension problem getting worse

VSED + Dementia Raise New Questions About Respect for End-of-Life Decisions

A new acronym, VSED, is emerging in discussions of end-of-life decision making.  It refers to Voluntarily Stopping Eating and Drinking. However, what happens when such a plan is combined with increasing dementia? 

As addressed in Paula Span's thoughtful piece for The New York Times' "The New Old Age," it may not be possible to ensure such a plan will be honored, at least not under the existing law of most states. Consider the following example:

"Like many such documents, [Mr. Medalie's Advance Directive] declares that if he is terminally ill, he declines cardiopulmonary resuscitation, a ventilator and a feeding tube. But Mr. Medalie’s directive also specifies something more unusual: If he develops Alzheimer’s disease or another form of dementia, he refuses 'ordinary means of nutrition and hydration.' A retired lawyer with a proclivity for precision, he has listed 10 triggering conditions, including 'I cannot recognize my loved ones' and 'I cannot articulate coherent thoughts and sentences.' 

   

If any three such disabilities persist for several weeks, he wants his health care proxy — his wife, Beth Lowd — to ensure that nobody tries to keep him alive by spoon-feeding or offering him liquids. VSED, short for 'voluntarily stopping eating and drinking,' is not unheard-of as an end-of-life strategy, typically used by older adults who hope to hasten their decline from terminal conditions. But now ethicists, lawyers and older adults themselves have begun a quiet debate about whether people who develop dementia can use VSED to end their lives by including such instructions in an advance directive...."

For more, continue reading  "Complexities of Choosing End Game for Dementia."  Thanks to Elder Law Attorney Morris Klein for sharing this good article.

 

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The New Old Age: Complexities of Choosing an End Game for Dementia

Midweek Potpourri: Recent Elder Law Articles from SSRN

Catching up with three new elder law-related articles from SSRN that look very interesting:

"The Universality of Medicaid at Fifty" by University of Kentucky Law Professor Nicole Huberfeld, forthcoming in the Yale Journal of Health Policy Law & Ethics:

"This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The essay then assesses and evaluates Medicaid’s new universality across four dimensions - governance, administration, equity, and eligibility. Each reveals a facet of universality that underscores this new principle’s importance for health care into the future."

"The Troubled State of America's Nursing Homes," by Temple Law's graduate, Albert Moran:

"This paper analyzes nursing home failures in light of the federal regulatory regime that oversees them. Section II provides a framework for the discussion of nursing homes by describing the choices seniors have for their living arrangements. In order to establish context for the current social and legal space inhabited by nursing homes, Section III traces the historical development of the modern nursing homes, with a particular focus on the landmark laws of the 1960s that paved the way for late-twentieth century proliferation of nursing homes. With this background in mind, Section IV explores the federal regulatory regime that governs nursing homes, and Section V details the bodies and mechanisms that enforce federal rules and regulations. Section VI provides evidence and statistics regarding the prevalence of abuse and neglect in nursing homes and argues that these data evidence a troubled regulatory system. Section VII examines the Patient Protection and Affordable Care Act, which has been heralded as the most significant legislation affecting the healthcare industry in decades, and concludes that the law does not contain provisions that will serve to reduce elder abuse and neglect in any significant way. Section VIII offers recommendations to improve nursing home care in light of the foundation provided by PPACA. Section IX discusses potential blowback that these and other solutions may present and urges reformers to proceed carefully and thoughtfully before enacting any proposed reform."

"Probate Law Meets the Digital Age," by George Washington Law Professor Naomi Cahn, for the Vanderbilt Law Review:

"This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act ('SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account."

NSCLC Update on Minimum Wage and Overtime for Home Care Workers

The National Senior Citizens Law Center (NSCLC) has sent out the latest news on pending (but delayed) implementation of new rules affecting payment of wages for many home care workers.  Here is the helpful update from NSCLC: 

"A U.S. federal district court has struck down new rules that would have applied Fair Labor Standards Act standards, like payment of minimum wage and overtime, to most Medicaid home care providers.  Historically, many personal care providers and other in-home assistants have been exempted from federal labor laws under the 'companionship services' exemption.  

The US Department of Labor is likely to appeal the decision to the D.C. appellate court, so a final decision on the validity of the expanded FLSA regulations will take some time.  In the meantime, however, the new regulations, which were supposed to start on January 1, 2015, will not take effect.  Unless a state chooses otherwise, home care providers’ wages and hours will stay the same.  For more details about the court decisions or the rule, visit http://www.dol.gov/whd/homecare/ or contact Hannah Weinberger-Divack."