Elder Law Prof Blog

Before there was "Elder Law"? Jeff Marshall, Esq. remembers...

ElderLawGuy Jeff Marshall has always been a bit ahead of his time, including being among the first to recognize that aging can carry with it a distinct set of legal issues.  Not every lawyer is equipped to deal with families facing dramatic changes, whether in terms of temperament or legal knowledge.  Jeff constantly stays on top of new developments, in both law and technology.  For example, read here how Jeff uses "tweeting" as a tool, to help him stay current on the law, and engaged with the wider world.  Jeff has often inspired me, from the moment of my first "big" meeting with him here in Pennsylvania almost 20 years ago, at a little conference on a very cold winter day in Wilkes Barre. It is hard to believe, but he's been a specialist in elder and estate law for 35 years! Here's part of the tale, from the Sun-Gazette.com:

When attorney Jeff Marshall returned home in 1980 his vision, according to a news release, was to found a law firm that would serve the needs of older adults. A native of Lock Haven, Marshall had graduated from Stanford Law School in 1972 and had remained in California for the rest of that decade. By 1980 he was ready to return to his roots in Pennsylvania.

 

At the time, there was no such thing as an "elder law firm." But Marshall recognized that his older clients faced a complicated array of legal, financial, and health care issues, the news release said. Their legal planning needed to be coordinated with non-legal concerns to best protect their dignity, comfort and self-determination. So he set about putting together a team of professionals with backgrounds in law, nursing, social work, and care management who were able to meet his client's broad needs.

 

Thirty-five years later the seeds he planted have grown into one of the most respected elder law and estate planning law firms in Pennsylvania with four offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton....  The firm celebrated its 35th anniversary at its 19th Annual Professional Updates held on May 6 in Williamsport and May 7 in Scranton.

Congratulations -- and thank you -- Jeff!

Blueprint for Advocacy? Changing the Culture of Care

Recently I had the opportunity to read a report of Northern Ireland's independent Commissioner of Older People advocating for "a change of culture" to better protect older people in care settings. The thirteen primary proposals strike me as concise, reasonable, and extraordinarily important, for any (make that every) country, including the U.S..  See what you think:

1. The rights, quality of life, dignity and care needs of vulnerable older people should be at the heart of planning, delivering, regulating and inspecting care services; it is their needs that must matter the most.

2. Standards for the care of vulnerable older people should be clearly displayed and available to all service users and their families and relatives of all nursing, residential and domiciliary care services as well as for any prospective users.

3. Inspection processes should be rigorous, with decisive and timely enforcement action taken when failings are detected.

4. The regulation and inspection service should include a rating system for care homes and domiciliary services. In addition to an overall rating, it should clearly identify if there are any breaches of regulations or failures to comply with improvements required.

5. There should be clear and rigorously applied sanctions taken against care providers for non-compliance with the minimum standards.

Continue reading

Drops in Occupancy Mark Challenges to Financial Health for Senior Living Industries

Publically-traded Brookdale Senior Living, founded in 1978, has grown to become the largest owner and operator of "senior living" communities in the U.S., including for-profit continuing care retirement communities (CCRCs). Thus, it is good to keep an eye on the finances of Brookdale for those of us interested in the long-term financial health of CCRCs and other senior housing options.

Steve Monroe at Irving Levin Associates notes that Brookdale "was no different than the rest of the market, posting sharp drops in first quarter occupancy" for 2015:

"The legacy Emeritus [a component of Brookdale, following a 2014 merger] properties posted a 110 basis point decline from the fourth quarter of 2014, and a whopping 200 basis point decline from a year ago. The legacy Brookdale properties dropped 80 basis points sequentially and 110 basis points from a year ago. This was not good news, but not unexpected. Oddly enough, the legacy Brookdale properties had a 250 basis point increase in community operating margin to 35.2% despite the occupancy declines. The Emeritus properties had a 90 basis point sequential drop in margin, which makes more sense."

How do you achieve a significant increase in "operating margin" despite "occupancy declines?" A good question to ponder.  Steve Monroe continues: "The reasons for the legacy Brookdale improvement were a combination of cost controls and more pricing flexibility. Move-ins have been increasing, which is great, but 'cost controls' always make me nervous, especially with the current acuity creep. Stay tuned."

The reference to "acuity creep" is to the increase in average age and frailty of new residents, compared with past years (especially before the financial crisis of 2008-10). This trend impacts CCRCs in several ways, both in terms of market appeal to healthier potential residents, and operating costs tied to an earlier need for higher levels of care.  An additional question may be whether low interest rates have supported a bubble in certain segments of senior housing despite the softer occupancy rates, and whether an eventual return to higher capitalization rates will result in lower values and additional consequences.

Along that same line, the Philadelphia Inquirer published a recent article in their "retirement" news edition, noting "Continuing-Care Retirement Community Choice Requires Diligence," by Harold Brubaker, with tips on what to ask if you are a consumer considering a CCRC option.

UK Conference on Intersections of Aging, Gender & Sexualities

The University of Surrey in the UK is hosting an international conference on July 6-7 on "Intersections of Ageing, Gender and Sexualities," with speakers from Israel, Iran, Taiwan, Hong Kong, Spain, Italy, Australia, South Africa, New Zealand, the U.S., and, of course, the U.K. 

Sociology Professor Toni Calasanti from Virginia Tech is giving the opening keynote address.  The half day sessions are separated into "themes," including Embodiment, Temporal (Dis)location, Queer Kinship, Representations, Intersections, and Age, Gender, Sexuality and Care.  Several of the sessions explore relationships between sexuality and menopause. 

For more on the program, see here.    

Justice Dep't & CCRC Agree to Consent Order in Disabilities Discrimination Claim

On May 12, the U.S. Department of Justice announced resolution of a disabilities discrimination complaint initiated by residents of a Continuing Care Retirement Community (CCRC) in Virginia. 

The resolution includes filing of a complaint and consent order that resolves allegations that Fort Norfolk Retirement Community Inc. (Fort Norfolk) violated the Fair Housing Act by instituting policies that discriminated against residents with disabilities at Harbor’s Edge, a CCRC in Norfolk, Virginia:

The consent order, which still needs to be approved by the court . . . along with a complaint, in the U.S. District Court of the Eastern District of Virginia.  The complaint alleges that beginning in May 2011, Fort Norfolk instituted a series of policies that prohibited, and then limited, residents in the assisted living, nursing and memory support units at Harbor’s Edge from dining in dining rooms or attending community events with independent living residents.  The complaint also alleges that when residents and family members complained about these policies, Fort Norfolk retaliated against them.  In addition, the complaint alleges that Fort Norfolk had polices that discriminated against residents who used motorized wheelchairs by requiring those residents to pay a non-refundable fee, obtain liability insurance and obtain Fort Norfolk’s permission.

 

Under the consent order, Fort Norfolk will pay $350,000 into a settlement fund to compensate residents and family members who were harmed by these policies.  Fort Norfolk will also pay a $40,000 civil penalty to the United States.  In addition, Fort Norfolk will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.

There is a history of similar issues arising in other CCRCs.  For example, in 2008, in California, CCRC resident Lillian Hyatt initiated, and eventually resolved to her satisfaction, a discrimination claim based on a ban on "walkers" in the dining rooms of her community.  

As the average age of residents in CCRCs has increased in recent years, the "appearance" issues are sometimes raised as a marketing or image concern, contrasting sharply with the expectations of individual residents as they age and seek continued access to the full range of services in their community. 

Our thanks to Karen Miller, Esq., of Florida, for bringing the recent Virginia case to our attention.

During Month of May on PBS: "Caring for Mom & Dad"

PBS is premiering a powerful documentary special, Caring for Mom & Dad, during the month of May, with Meryl Streep as the narrator.  A sample? Many of us might find resonance with one adult's "bad daughter" (or "bad son") feelings of guilt, candidly admitted here. 

Even more important than the video itself will be the conversations that follow viewing. Check your local public t.v. schedule to see when the program will air in your area.  (You can check here, to see if the documentary is scheduled yet in your viewing area -- go to the drop down menu for "Schedule.") Plus, in some markets, the documentary will be combined with a live call-in opportunity for individuals and families to explore health care, social care, financial topics and legal issues with a panel of experts.

My own university, Penn State, is hosting the special on Thursday, May 28, 2015  at 8:00 p.m. (Eastern time), followed by Conversations Live at 9:00 p.m. That is two weeks from today on WPSU-TV, a station that reaches a viewing area of 29 counties in central Pennsylvania. In addition, the Conversations Live program will be broadcast on WPSU-FM radio and can be viewed "on-line" at WPSU.org. 

As a result of an invitation to be part of the WPSU studio panel, I've had the opportunity to watch the documentary -- several times (it's that interesting!) -- in preparation to help in responding to audience comments, emails and call-in questions.  Additional Conversations Live guests include:

    Ai-jen Poo, co-director of Caring Across Generations and director of National Domestic Workers Alliance, will be joining via satellite from D.C.  Ai-jen Poo is featured in the documentary, and she also has a particular interest in enactment of a Domestic Workers' Bill of Rights, to deal realistically and fairly with the work force that will be necessary to meet the boomer generation's care needs.

    Dr. Gwen McGhan, Hartford Center for Geriatric Nursing Excellence at Penn State, with a research background on informal family caregiving.

    Jane McDowell, Hartford Center for Geriatric Nursing Excellence at Penn State, and a geriatric nurse practitioner.

The documentary was produced by WGBH-Boston, with funding assistance from AARP and Pfizer.

Please join us and share your stories and observations. The documentary starts with personal stories, but the public policy messages that emerge are ones that need to be heard at state and federal levels -- and heard clearly -- for there to be hope for realistic, necessary and timely solutions.

Pro Bono Attorneys Needed to Serve as Social Security Rep Payees

The recent issue of Bifocal, the bi-monthly Journal of the ABA Commission on Law and Aging has a great line-up of articles, including a piece by Social Security Administration (SSA) specialist Janet Truhe on Social Security Seeks Pro Bono Lawyers to Meet Need for Representative Payees.  She notes that many disabled individuals do not have family members or other trusted persons who can serve as their agents for receipt and management of Social Security benefits.  Anticipating the need for "rep payees" will continue to grow as boomers age, SSA is recruiting attorneys to serve: 

Recently, the agency announced the implementation of a pro bono pilot in the State of Maryland (where SSA is headquartered), which is aimed at expanding the pool of suitable representative payee candidates statewide. SSA believes that partnership with the legal community for this purpose is a natural fit....

 

One particular advantage of this pro bono opportunity is that any attorney, regardless of his or her specialty, can serve as a representative payee with SSA providing any needed assistance. SSA has created a web site for attorney volunteers with training and other information about the role of a representative payee. Any licensed attorney in Maryland, or in neighboring jurisdictions, who would like to volunteer as a representative payee for a beneficiary residing in Maryland can go to http://www.socialsecurity.gov/payee/probonopilot.htm and complete an online registration form. SSA will send the volunteer attorney’s contact information to the servicing local field office. When SSA needs a representative payee for a particular beneficiary, that field office will contact one of the volunteer attorneys and make an appointment for the attorney to come in for an interview and meet the beneficiary.

Hat tip to ElderLawGuy Jeff Marshall for pointing out this SSA recruitment effort.

A Woman Without Fear...

On Mothers' Day, NPR replayed a great StoryCorps interview with 87-year old Kay Wang, from her growing up days in China to her fearlessness in facing down a thief in Bloomingdales.

 

My thanks to my Dickinson Law colleague Professor Laurel Terry for making sure we would catch this interesting piece.

Are Seniors' Children Appropriate Sources of Reverse Mortgages?

One option for seniors needing more income late in life is using the equity in their homes, and "reverse mortgages" may make it possible for the older homeowner to stay in the home longer.  The Washington Post recently explored the option of having family members serve as the source of reverse mortgage funding.  When the Kids Provide a Reverse Mortgage for Mom and Dad outlines potential pros and cons of family-based financing, starting with the mechanics of the loan:

Here’s a simplified example: Say you and two siblings want to help Mom and Dad, who are in their late 70s. You and your siblings are all doing well enough that you have at least some cash to spare. Ultimately, you want to retain your parents’ house for the estate once your parents pass away, keep costs to a minimum and sell the property only when you, not a faraway bank, choose to do so.

 

So you sit down with Mom and Dad and determine that, at least for the foreseeable future, they will need about $1,500 in additional income a month. You and your siblings agree to apportion the payments among yourselves in some way, maybe a commitment of $500 a month each for a period of years. You also pick an interest rate that achieves a win-win result for you and your parents — say, 3 percent annually. That’s much lower than a commercial lender would charge but higher than what you’ve been earning on your bank deposits or money market funds. There are no required fees upfront — hey, it’s Mom and Dad.

Thanks to Maryland elder law attorney Morris Klein for the pointer to this article. 

Related articles

A way to keep money in the family

Reverse mortgage paperwork on the rise

Caregiver Mortgage Helps Relatives Crowdfund Home Equity Lines of Credit

Elder Law Prof Blog

Pharma Company Fights Back on Off-Label Drug Use Prosecutions

We've written on this blog several times about successful prosecutions connected to so-called "off label" drug use, including the use of antipsychotics for agitation in dementia patients.  See here and here, for example.  Now, courtesy of a New York Times article, there is news of a pharmaceutical company's lawsuit to preempt such prosecutions, raising First Amendment free speech rights as grounds for off-label advocacy: 

On Thursday, Amarin Pharma took the unusual step of suing the Food and Drug Administration,  arguing that it has a constitutional right to share certain information about its product with doctors, even though the agency did not permit the company to do so. Lawyers for the company said that they believed their case was the first time a manufacturer had pre-emptively sued the agency over the free-speech issue, before it had been accused of any wrongdoing. Other companies have sued the agency only after they have gotten into trouble....

 

Lawyers for Amarin say the company is not proposing to market Vascepa to a wider population of patients, merely to share with doctors the results of a 2011 company-sponsored clinical trial that showed the drug lowered triglycerides in patients with “persistently high” levels....

More details about the suit available here. 

Related articles

Pharma group Amarin sues FDA over right to brief doctors on drug

Amarin v. FDA and Public Meeting On Off-Label Promotion Signal An Important Year For Clarity Around Scientific Exchange and the First Amendment - Policy and Medicine

Signs of the Times (Part 2 from Belfast)

Earlier this week, I posted about surprising "products" you can find at Belfast,Northern Ireland's St. George's Market. 

There are other spots in Belfast that also bring a smile.  Near the law courts are two shops that offer tailoring and "Legal Clothing,"  one, appropriately enough, run by the Suitor family, and the other with the nice chosen name, Law Suit. 

In Avoca, an Irish-family run business with stores in several spots, both in north and south Ireland, I ran across another "sign of the (aging) times."  Walking past the card collection in the shop in Belfast, I noticed an array of birthday cards, running from age 2 to ... 80, 90, and yes, 100! The proportion of the population in Northern Ireland over age 65 is approaching the 20% mark.

A Juror's Perspective from the Iowa Sexual Assault-Dementia Trial

I'm catching up on news items after being away for a few days.  There are additional insights about the sad trial of Henry Rayhons in Iowa, that ultimately resulted in his acquittal, from one of the jurors, who also happened to be a reporter.  Too often it is easy to focus about what is wrong with the court system, but here is a reminder of just how seriously most jurors take their duties. 

Read, "The Rayhons Trial: A Juror's Perspective," by Angela Nelson.  And my thanks to Bryan Gruley who made sure we did not miss this powerful coda to the trial. 

"Woman in Gold" was also a Woman with a "Will" (Or Maybe Not)

Have you seen the movie Woman in Gold?  Lots here for lawyers, law professors, and students to discuss -- which may be why reviewers often seem to mention the movie is, hmm, a tad slow moving.  There is nothing like watching a lawyer research in dusty libraries to frustrate a significant percentage of the viewing public waiting for the next explosion or car crash.

At the heart of the movie version of the tale  is a document, relied on by Viennese authorities as their provenance for a renowned painting's "rightful" place in Austria.  Is it or isn't it a "will" executed by Adele Bloch-Bauer? She was the subject of Gustav Klimt's shimmering painting, and the question is whether the document controls the ultimate fate of the painting. Helen Mirren is her usual marvelous self, portraying the 80+ year-old niece of Adele and a member of a Jewish family targeted by Nazi hatred.

Here's a nice follow-up to the movie story, courtesy of the New York Times, Patricia Cohen's The Story Behind ‘Woman in Gold’: Nazi Art Thieves and One Painting’s Return.

Signs of the Times? (Part 1 from Belfast)

Last week I was visiting in Ireland, and specifically in Belfast, Northern Ireland, where I was giving a workshop on comparative contract law for students at Queen's University Belfast in its new J.D program.  When I visit the city, I always try to save a day for a "dander" around the town, which is wonderfully walkable. 

St. George's Market is a favorite spot -- and in fact last year while I was visiting, Queen Elizabeth was there too, a definite surprise, if you know the history of politics in this city.

There is an interesting collection of stalls, that change a bit with the season and the day.   

 

 

Transactions always come with a smile. You can buy fresh fish (I swear I saw one wink at me), fresh eggs, or your funeral plan! 

   

 

  

 

 

 

  

 

 

Savings Crisis?

Yesterday I posted about a new report on Americans' views of the "retirement crisis".  Another report from the same organization, National Institute for Retirement Security ,focuses on Americans saving for retirement.  The Continuing Retirement Savings Crisis is a 30 page report that offers 4 key findings:

1. Account ownership rates are closely correlated with income and wealth…
2. The average working household has virtually no retirement savings. When all households are included— not just households with retirement accounts—the median retirement account balance is $2,500 for all working-age households and $14,500 for near-retirement households…
3. Even after counting households’ entire net worth—a generous measure of retirement savings—two thirds (66 percent) of working families fall short of conservative retirement savings targets for their age and income based on working until age 67...
4. Public policy can play a critical role in putting all Americans on a path toward a secure retirement by strengthening Social Security, expanding access to low cost, high quality retirement plans, and helping low income workers and families save…

The report is available for download here. There is a webinar available (running time slightly over 45 minutes) here. A PowerPoint that accompanies the webinar is also available here.

GAO Reports to "Congressional Requesters" on Advance Directives

Here we go again.  Another hard look at why a significant percentage of the public has not signed some form of advanced directive.  In April 2015, GAO issued Advance Directives: Information on Federal Oversight, Provider Implementation, and Prevalence, its response to requests made by Senators Bill Nelson (D-Fla), Johnny Isakson (R-Ga), and Mark Warner (D-Va) who were inquiring into the role of the Centers for Medicare and Medicaid Services (CMS) in overseeing providers, including hospitals and nursing homes, that are mandated by law to maintain written procedures and provide information about advance directives. 

Perhaps it is just me, but whenever legislators raise this topic, it seems to me the not-so-subtle underlying message is "why aren't people agreeing in writing to forego aggressive health care as they near the end of life so that we can save more money on health care?"  

In any event, the report:

• documents current practices for offering living wills, health care powers of attorney, and various alternatives such as DNR and POLST forms (including the potential for some confusion among staff members of health care providers about "who" should be handling the education and signing process),
• refers to a major Institute on Medicine study (Dying in America, 2015) on a similar topic, and
• concludes that there is no "single" point of entry for execution of advanced directives. 

As the GAO team observes, "[t]herefore, a comprehensive approach to end-of-life care, rather than any one document, such as an advance directive, helps to ensure that medical treatment given at the end of life is consistent with an individual’s preferences."

Hat tip to Karen Miller, Esq., in Florida for the link to the latest study and report. 

Retirement Crisis? New Report

The National Institute on Retirement Security has issued a new report, Retirement Security 2015: Roadmap for Policy Makers. Americans' Views of the Retirement Crisis.  The 36 page report offers 7 key findings

1. An overwhelming majority of Americans believe there is a retirement crisis...
2. Three in four Americans remain highly anxious about their retirement outlook, but the concern has dissipated slightly as the economy has recovered…
3. Even though Americans feel slightly less stressed about their retirement prospects, support for steady and reliable retirement income from a pension is high and growing…
4. Americans continue to feel that leaders in Washington do not understand their struggle to save for retirement, and they strongly support efforts by states to set up retirement plans for those workers without access to an employer sponsored plan…
5. Americans see retirement benefits as a job feature that is almost as important as salary...
6. Americans express strong support for pensions for public employees…
7. Protecting Social Security benefits is increasingly important…

The nationwide poll is conducted every two years and "is intended to serve as a tool for policymakers, thought leaders and retirement service providers as they work to stem the retirement crisis and re-fortify the U.S. retirement infrastructure." The full report is available here.

EBRI Looks at "End-of-Life Financial Situation in America"

The Employee Benefits Research Institute (EBRI) recently published an interesting examination of financial situations of older Americans at the end of their lives.  The report documents:

• the percentage of households with a member who recently died "with few or no assets,"
• the continued importance of Social Security for older households,
• the potential importance of "big data" analytics "to determine how people behave when it comes to health and retirement plans," including the potential to "get better results at lower cost," and
• the fact that the "health sector is considerably farther down the road than the retirement sector in using data analytics in benefits plan design and management."

The report (executive summary here and full PDF here) suggests future avenues for research. 

My Retirement Paycheck

My Retirement Paycheck is an interactive website from the National Endowment for Financial Education. The website offers 8 icons on which the user clicks to learn more about the topic. The 8 topics include home & mortgage, insurance, retirement plans, savings & investments, debt, fraud, work and Social Security. Each topic offers information in an easy to understand format and links for additional readings.

Japan's Demographic Trend -- Aging -- Inspires New Technology

I strongly suspect that my Blogging colleague Becky Morgan, who embraces new technology, will approve.  As detailed in the New York Time's business section, Japan's leadership position in a surprising market sector-- as the nation with the highest percentage of older citizens -- has inspired innovation:

Japan is an incubator of aging.... Twenty-five percent of its population, or 33 million people, are age 65 or older, more than double the global average.

 

IBM, Apple and Japan Post Group, a giant postal service, bank and insurer, declared on Thursday that they were joining to deliver a new technology service to the fast-growing market of older Japanese adults. The service involves equipping Japan’s silver generation with iPads loaded with software apps to help them communicate with family and friends, monitor their health, and buy goods and services.

For more read Apple, IBM and Japan Post See Profit in the Old-Age Market