Friday, February 27, 2015
For more than twenty-five years, The Atlantic Philanthropies has been one of the most important funding sources for nonprofit and NGO work on health, education and equality issues in the U.S. and beyond, often providing key support for legal advocates including those at the National Senior Citizens Law Center (with its new name, Justice in Aging). My first encounter with AP began in Ireland in 2009-10, when I was based at the Changing Ageing Partnership, an AP funded-project at Queen's University Belfast.
Everywhere I turned during that sabbatical, I encountered the good works underway as the result of Chuck Feeney's decision in the mid-1980s to transfer virtually all of his considerable personal wealth to Atlantic. I learned that for the first half of AP's history, the grantmaking was anonymous and Chuck Feeney's role was largely unknown. The publication of The Billionaire Who Wasn't, by Irish writer Conor O'Clery, helped to change that visibility, and Mr. Feeney began to embrace a more public commitment to "giving while living."
My own work was impacted by what I learned that year, and I soon added a course on Nonprofit Organizations Law to my teaching package at Penn State's Dickinson Law.
Now Atlantic Philanthropies is facing its final two years of new grants, with 2016 being the concluding year. The final grants will focus on four themes:
Texas attorney Renée C. Lovelace has literally written the book -- a guidebook -- on Pooled Trust Options. Renée was a recent guest speaker at Penn State's Dickinson Law, appearing before students in an advanced seminar on planning techniques. Indeed, our students had specifically asked to hear from experienced practitioners on special needs trusts, and with the help of the National Elder Law Foundation we were able to host a nationally known speaker to do just that.
Renée (third from the left, in blue) helped our students identify appropriate uses of pooled trusts, such as where the beneficiary's needs could be uniquely well-served by a trustee who is familiar with the challenges sometimes encountered in managing assets on behalf of persons with disabilities.
While the special needs beneficiary may be frustrated by a manager's handling of "his" (or "her") money, sometimes it is the family that has questions about application of the law. Recently I was reading a New Jersey case decision, where a family was challenging the state's attempt to seek reimbursement for medical and care expenses expended by the state, following the death of their disabled daughter. At the core of the dispute was what appeared to be a misunderstanding on the part of the family about the nature of their daughter's special needs trust, which they were describing as a pooled trust. The court pointed out, that in the absence of a nonprofit manager, the trust could not be deemed a (d)(4)(C) trust or "pooled" trust, that would have allowed assets remaining after the death of the daughter to stay in the trust for the benefit of other disabled persons, rather than be subject to the state's reimbursement claim.
Thus, the case is a reminder that pooled trusts, properly created and managed are usually drafted as special needs trusts (SNTs). However, not all SNTs are pooled trusts. Or as Renée explains so well in her thorough guidebook:
Check out Volume 48, Issue 1 of the Indiana Law Review which contains articles from the 2013 Program on Law & State Government Fellowship Symposium: State Governments Face the Realities of Aging Populations. Three articles are included from the symposium, all of which are available on-line. The articles include Introduction: Governing Choices in the Face of a Generational Storm, Aging Populations and Physician Aid in Dying: The Evolution of State Government Policy, and What the Future of Aging Means to All of Us: An Era of Possibilities.
Thursday, February 26, 2015
The New York Times offers dramatic front page coverage of a criminal trial against ten defendants in France, accused of manipulation of Liliane Bettencourt, the 92 year-old heir of the L'Oreal cosmetics fortune. The defendants include a "celebrity photographer" (and his "long-time companion"), a former wealth manager, and an 81-year-old notary "who certified, with misgivings, Mrs. Bettencourt's decision to make" the 67-year-old photographer her sole heir, cutting out her only daughter.
Serious money is involved, with Forbes once estimating Mrs. Bettencourt's fortune at more than $40 billion. She has been diagnosed with "dementia and moderately severe Alzheimer's."
The prosecutors said her advanced age, the beginnings of dementia and a daily medical regimen of 56 pills, including antidepressants, also invited exploitation. And investigators contend that the schemes were so widespread that they included a political scandal involving a former finance minister seeking cash for the 2007 presidential campaign of Nicolas Sarkozy.
Some of the house staff members risked their jobs to challenge her advisers and confidants, particularly a French society photographer who gained the largest share of her fortune. At one point, investigators estimated that share to be about a billion euros, or $1.13 billion, in gifts during 20 years of friendship ending in 2010.
“Liliane wanted to do things for me, to ease my life,” testified the photographer, François-Marie Banier, 67, who is facing the highest penalty of the defendants, three years in prison. “I refused things like a mansion. But she took it so poorly. It’s really hard to cross that extraordinary woman.”
For all the details, sadly familiar if you followed the Brooke Astor history of wealth and manipulation, about the trial that just ended before a panel of judges who will issue their verdict on May 28, read "The Case of L'Oreal Heiress, A Private World of Wealth Becomes Public."
February 26, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)
A new research project on demographics of the U.S., with funding from The William and Flora Hewlett Foundation, brings together the Center for American Progress, the American Enterprise Institute, and demographer William H. Frey of the Brookings Institution. The project goals are:
- To document and analyze the challenges to democracy posed by the rapid demographic evolution from the 1970s to 2060
- To project the race-ethnic composition of every state to 2060, which has not been done for 20 years
- To promote a wide-ranging and bipartisan discussion of America’s demographic future and what it portends for the nation’s political parties and policy
The team's first report identifies a Top Ten list of demographic factors likely to impact the future of both policy-decisions and politics, including #6 on the "Graying of America." Graphics illustrate each of the projections, including this one on aging.
For more complete results, see The States of Change: Demographics and Democracy, 1974 to 2060.
Thanks to GW Law Professor Naomi Cahn for sending this report! The statistics should be useful for generating student discussion in a wide range of courses.
The movie, Still Alice, has been released. Starring Julianne Moore in the role of the lead character, the movie is based on the book by the same name written by Lisa Genova. The book and movie are about a professor who has early onset Alzheimer's. The synopsis from the movie's website describes the movie this way:
Alice Howland, happily married with three grown children, is a renowned linguistics professor who starts to forget words. When she receives a diagnosis of Early-Onset Alzheimer's Disease, Alice and her family find their bonds thoroughly tested. Her struggle to stay connected to who she once was is frightening, heartbreaking, and inspiring.
Wednesday, February 25, 2015
There are many interesting sessions, but two sessions will be of particular interest to those of us teaching elder law. On Saturday May 30 from 4:45-6:30 p.m. PDT is a panel session on Supporting Older Adults' Well-Being: A Look Across Countries which will include 5 presenters focusing on three countries, Sweden, China and the U.S. The second session is on Sunday May 31 from 8:15-10:00 a.m. PDT is a panel discussion on Uniform Laws & Older Adults. The general schedule for the conference is available here.
Tuesday, February 24, 2015
USA Today reports on home care workers "joining a nationwide movement" to raise wages, with rallies planned for "more than 20 cities in the next two weeks."
As described by journalist Paul Davidson,
"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging Baby Boomers over the next decade.
'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."
According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."
Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.
February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.
The hosts describe the webinar as follows:
This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance.
Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.
Here is the link for REGISTRATION. Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families.
The Administration for Community Living (ACL) has announced an upcoming webinar, Intellectual & Development Disabilities & Dementia-Experiences of a Family Advocate & Promising Practices. The webinar is scheduled for February 26, 2015 from 3-4 p.m. est. Registration is free. The program website offers this description of the webinar:
The February 26th webinar will provide participants with information on personal experiences, advocacy efforts, and helpful practices for people with intellectual and developmental disabilities (ID/D) and dementia. Mary Hogan will speak about her personal experience as guardian for her late brother and an advocate for her brother and others with intellectual and developmental disabilities and dementia. Phil McCallion will speak about promising practices of how to work with people with ID/D and dementia.
To register, click here.
Monday, February 23, 2015
On Saturday, I had the privilege of attending the 7th Annual Conference of the Pennsylvania Association of Elder Law Attorneys (PAELA), to give a presentation with Dr. Claire Flaherty, a Penn State Hershey Medical Center neuropsychologist with special expertise in frontal and temporal lobe impairments, on "Dementia Diagnosis and the Law."
Another speaker, Teepa Snow, an occupational therapist with long-experience in behavioral health, brain injury and dementia care, spoke on Sunday.
It was one of the rare times when I've been glad to be "snowed in" at a conference, as that kept me in place for both days of the presentations, rather than rushing home to work on some other task.
One of the topics that was discussed by attendees over the two days was the question of whether testimony by witnesses who observe "moments of lucidity" -- standing alone -- is proper support for a finding of "legal capacity." Context is important, of course, as both common law and statutory law increasingly recognize that capacity should be evaluated in terms of specific transactions.
My own takeaway from the health care experts was the need for some measure of caution in this regard. With many forms of dementia, especially at the early stages, unrecognized impairment of judgment may precede recognized impairment of memory. In other words, as I understand it, we may spend too much time being impressed by a client's ability to remember who is the president or the names of their children, and too little time asking more probing questions. Deeper inquiry may reveal or ameliorate concerns about judgment, including an individual's current abilities to make decisions, make reasonable, rational connections in formulating or following a plan, and related skills such as empathy or self-awareness.
Along this same line, it is a good time to remind readers that there are three useful handbooks on "Assessment of Older Adults With Diminished Capacity," one directed to lawyers, one to psychologists, and one for judges, that were created by experienced professionals working as a team on behalf of the American Bar Association and the American Psychological Association (APA). Individual copies can be downloaded without cost from the APA website.
Sunday, February 22, 2015
The first White House Conference on Aging Regional Forum was held on February 19, 2015 in Tampa Florida. The morning featured comments by the WHCOA Executive Director Nora Super and remarks by Cecilia Munoz, Assistant to the President and Director, Domestic Policy Council. Two panels followed, with comments by panelists on the 4 topics of emphasis for the 2015 WHCOA, healthy aging, long term services and supports, retirement security and elder justice. In the afternoon, participants were divided into working groups for those 4 topics, where they discussed priorities, obstacles, and actions. Representatives from each working group presented the group's topic recommendations in a closing panel presentation moderated by Kathy Greenlee, Administrator for the Administration on Community Living and the Assistant Secretary for Aging. In person attendance was invitation only, but the event was live webcast through HHS. The next regional forum is set for Phoenix, Arizona on March 31st. Visit the WHCOA forums website a day or so before the event to register for the live webcast.
February 22, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, Programs/CLEs, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)
Friday, February 20, 2015
Seasons 22 Restaurants, with locations in more than ten states nationwide, has a reputation for dining that emphasizes farm-to-table freshness, naturally seasoned cooking, and with a pledge that nothing on the menu is over 475 calories. Cutting edge, and hip.
Not so hip are the allegations by the EEOC that since 2010 the chain "engaged in a nationwide pattern or practice of age discrimination in hiring hourly workers," as described in a lawsuit filed by the EEOC this month:
"According to the lawsuit, various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees, and telling applicants that Seasons 52 'wasn't looking for old white guys.'
Age discrimination violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit Civil Action No. 1:15-cv-20561-JLK, in U.S. District Court for the Southern District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks monetary relief for applicants denied employment because of their age, the adoption of strong policies and procedures to remedy and prevent age discrimination by Seasons 52, and training on discrimination for its managers and employees.
'This case represents one example of the barriers to hiring that some job applicants face,' said Malcolm S. Medley, district director for the EEOC's Miami District Office. 'Eradicating barriers to employment opportunities is a priority of the Commission.'"
Thanks to students in the Elder Law class at George Washington Law for sharing news of this case, which includes the response by Darden (the parent company) spokesman, denying the allegations and pledging to "defend this claim vigorously."
Thursday, February 19, 2015
Should an Individual's "Vulnerability" be a Defining Criterion for Social Welfare Policy or Services?
Emory Law Professor Martha Fineman, long known for her feminist jurisprudence, has attracted increasing attention for her work on specific concepts of dependency and vulnerability. Her 2008 analysis of vulnerability, rather than, for example, gender or race, as a tool to shape a more responsive state and a more egalitarian society, has been seminal.
Syracuse Law Professor Nina Kohn, in her latest work, "Vulnerability Theory and the Role of Government," notes the "attractiveness" of vulnerability theory, but pushes back against the growing reliance on it as a policy tool, using her own understanding of old-age related government services as the basis for comparison. She raises a serious concern about the potential for the current definition and focus on vulnerability to promote "unduly paternalistic laws." For example, Professor Kohn writes:
"Vulnerability theory as currently articulated would focus attention on maximizing safety and security without adequately considering the impact of potential laws and policies on individual autonomy, or how a sense of autonomy may actually contribute to an individual’s safety and security. This effect is particularly problematic in the context of evaluating laws that seek to protect individuals from entering into or maintaining personal relationships perceived to be unsavory, as is the case with many of the policies designed to protect older adults from abuse, neglect, and exploitation. This is because the autonomy being undermined is the autonomy of the person whom the state is trying to help; since undermining an individual’s autonomy can harm that person in both tangible and intangible ways, the state’s actions are prone to being at least partially counterproductive. Thus, vulnerability theory might be of greater prescriptive value if it distinguished between infringements on autonomy where the person whose autonomy is being sacrificed is the supposed beneficiary of the infringement and infringements on autonomy designed to benefit another."
Professor Kohn's article, published in the most recent issue of Yale Journal of Law and Feminism, uses recent changes in California law to demonstrate a framework for revision of the current theory of vulnerability, with a goal of identifying a "standards based approach" for specific government response.
As the long-predicted aging tsunami hits, are there enough doctors to meet the need? Not in Montana, as demonstrated by a two-part story from NBC News:
"There is no part of life in McCone County, Montana, where the community's age has not begun to show. Farmers have gone gray. There were some dozen funerals last winter. Each year makes more widows. Nearly 25 percent of McCone County's 1,700 residents are already over 60, a bellwether for changes that will soon roll across Montana. State projections show a quarter of Montanans will be seniors by 2030, twenty years before the same demographic shift hits the nation as a whole.
Montana policymakers have watched that shift coming toward them, knowing it brings more older, potentially sicker patients to a largely rural medical system in which providers and specialists are already scarce. Seniors here often travel an hour or more for 'emergency' care, and nursing home beds are dwindling, particularly in the sparsest areas.
In the face of these changes, Charlie Rehbein, head of the Montana Office on Aging, asks, 'How do we provide services to them?'"
Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Monday, February 16, 2015
The themes for the two day conference are:
November 12 (Day 1): Connecting Across Discipline and Geography:
Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults. Particular topic areas we are seeking include:
- elder abuse,
- assisted living and retirement housing,
- financial abuse,
- age friendly communities, and
- outreach strategies.
November 13 (Day 2): Key Practice Challenges and Hot Topics in Legal
Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.
Contact National Director Krista Bell with any questions, and additional details, including submission information are available here.
February 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)
ABA's Litigation magazine's Winter 2015 issue has an interesting theme -- "regrets" -- and I encourage all attorneys and law professors to track it down. Lots of gems here, offering plenty of stimulus for conversation.
Famed trial attorney Gerry Spence starts off one of the articles in this way:
"Like most old men looking back, I tend to forget the major regrets in my life. Mine may been becoming a trial lawyer in the first place. I learned how to try case by failing. I regret I wasn't taught in law school the first rudimentary principles of a jury trial. But how could that happen when most of the professors had never been in a courtroom?....
"In short, the justice system is broken.... I've labored in the system for over 60 years, and I regret, not winning, but in contributing to the myth that there's liberty and justice for all. I regret aiding and abetting the 'appearance of justice' that continues to defraud most Americans who have never awakened one day to find themselves crunched in the system...."
Abe Krash, with a 50 year career at D.C.'s Arnold & Porter law firm, shares his thoughts, thoughts that are on the whole, more positive that Spence's, but include:
"The bloom on the Washington legal rose began to fade somewhat in the mid-1980s during the era of deregulation. At about the same time, the legal profession began to change in significant ways. I applaud a number of the changes... such as the widening opportunities afforded to women and minorities. But like many others of my generation, I regret some of the changes, including the shift among large law firms from a partnership mode to a corporate mode."
Elder Law, which as a specialization is still relatively young, is now "old enough" to see a first generation of long-time practitioners contemplating their own retirements. I wonder how the theme of "regrets" might play out for these individuals?
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Sunday, February 15, 2015
Kaiser Health News reported a story regarding a change in the nursing home star rating system. The story, Government To Grade Nursing Homes On Tougher Scale,. dated February 12, 2015, notes that effective immediately the government is "grading" the nursing homes harder "in part by increasing scrutiny of their use of anti-psychotic drugs and raising the bar on an array of quality measures." The five-star rating system that is used to "grade" nursing homes has been criticized previously and the article references an article in the August 24, 2014 New York Times, Medicare Star Ratings Allows Nursing Homes to Game the System.
The quality score changes include "count[ing] the percentage of residents given anti-psychotic drugs, reflecting concern that too many are unnecessarily drugged to make them easier to manage." But as the story notes, that data will continue to come from the nursing homes. According to the article, the changes will start showing up on the website February 20, 2015 although the administrators of the nursing homes will have the new ratings earlier.
George Washington University Law Professor Naomi Cahn sent us a link to an interesting study that seeks to demonstrate the impact of income equality -- and wage stagnation for low and middle income workers -- on the long-term solvency of Social Security.
In a release accompanying the release of its study, the Center for American Progress (CAP) explains:
"Specifically, CAP’s issue brief finds that the trust funds would be $753.8 billion larger had the average worker’s wages kept pace with productivity growth between 1983 and 2013, thereby reducing the expected 75-year shortfall of the trust funds by 6.8 percent. The brief also shows that the trust funds would be greater by more than $1.1 trillion had the maximum taxable wage base remained fixed at 90 percent of earnings over the same time period, reducing the expected 75-year shortfall by 10.1 percent. Both scenarios would have added years of additional solvency to the Social Security trust funds. These findings come on top of Social Security trustees’ projections that, looking ahead, freezing the taxable wage base at 90 percent today would on its own close more than one-quarter of the projected 75-year shortfall....
CAP’s brief outlines how, as a result of the [existing] cap on taxable earnings--$118,500 for 2015—Social Security’s funding is tied directly to the full wages that low- and middle-income workers earn—but not to the full wages that higher-earning workers receive. The brief finds that in 2013, the top 1 percent of earners took home nearly the same share of the nation’s total wage income as the entire bottom half of workers. As a result, income has shifted away from workers whose full earnings are subject to payroll taxes and toward high-income workers whose additional dollars are exempt."