Elder Law Prof Blog

Call for Papers-Western Sydney University Elder Law Review

Here's the info from my dear friend, Sue Field, co-editor.

Elder Law Review The Elder Law Review is an independent refereed e-journal produced by Elder Law at Western Sydney University. It is the only Australian Journal concerned with Elder Law. The Review publishes articles about legal issues relating to seniors in all areas of law, including wills, powers of attorney, substitute decision-making, guardianship, discrimination, accommodation, contracts, financial management, retirement income, taxation and property. The Review is multi-disciplinary, bringing together professionals working, researching and writing in the aged care area. It is designed to be of interest to academics, practitioners and those involved in the provision of aged care.

The Elder Law Review can be accessed at

http://www.austlii.edu.au/au/journals/ElderLawRw/recent.html

https://www.westernsydney.edu.au/elr/elder_law/elder_law_review_elr

Call for submissions for Volume 11 (due for publication early 2018).

Notes to contributors The theme of the forthcoming issue will be “Legal and Financial Issues surrounding Retirement Villages” Original, unpublished contributions are invited for any of the following sections of the Review:

• the Refereed section containing scholarly articles about the legal/social/economic/policy issues associated with “International Perspectives on Elder Law”. While we will consider articles of any length, we prefer them to be between 3000 and 8000 words.
  
• the Comments section, which consists of contributions from government, lawyers and aged care representatives, commenting on issues which the contributor perceives to be of contemporary significance within elder law.
  
• News and Current Issues – including legislative changes and case notes.
  
• Elder Law in Practice which profiles legal practices, community projects, social justice initiatives and pro-bono schemes from all over the world that specifically target the legal needs of older people.

Papers must conform to the Australian Guide to Legal Citation which can be accessed at

http://law.unimelb.edu.au/__data/assets/pdf_file/0007/1586203/FinalOnlinePDF-2012Reprint.pdf

In particular, contributors should note the conventions regarding footnotes and bibliographies. Submissions must be received by January 15^th, 2018  and should be addressed to Sue Field [email protected]

For further information please contact Sue Field co-editor [email protected] Contributors are reminded that papers should be written in clear language accessible to specialists and non-specialists alike and that submission of articles is no guarantee of publication, as the Elder Law Review is a peer reviewed journal and ERA ranked.

 

 

Younger Retirees or Soon to Retire--Cost of Health Insurance

Kaiser Health News wrote about those in their 50s and early 60s who face retirement but are not yet eligible for Medicare. Rising Health Insurance Costs Frighten Some Early Retirees focuses on the ACA's exchanges which are expected to increase costs a lot at least partially due to the "administration’s decision to stop payments to insurers to cover the discounts they are required to give to some low-income customers to cover out-of-pocket costs." The article also mentions the constant focus on repeal and replace by Congress that creates a lot of uncertainty. It's not just about costs, but the variations amongst the states can also create unease. The increased costs may lead some to forego health insurance completely, especially, it is speculated, by those who get no subsidies.

There are already signs of that, according to an analysis for this article by the Commonwealth Fund. The percentage of 50- to 64-year-olds who were uninsured ticked up from 8 percent in 2015 to 10 percent in the first half of 2017. In 2013, the figure was 14 percent.

Indeed, the ACA has been a boon to people in this age group whether they get a subsidy or not. It barred insurers from excluding people with preexisting conditions — which occur more commonly in older people. And the law restricted insurers from charging 55- to 64-year-olds more than three times that of younger people, instead of five times more, as was common.

The law also provided much better access to health insurance for early retirees and the self-employed — reducing so-called “job lock” and offering coverage amid a precipitous decline in employer-sponsored retiree coverage that began in the late 1990s.

Stay tuned.

Advance Directives and Spoon Feeding

Recently there was some coverage about a woman who was being spoon-fed by employees of the facility despite the existence of her advance directive.  Kaiser Health News covers the issue in New ‘Instructions’ Could Let Dementia Patients Refuse Spoon-Feeding  explains that a group in Washington State has issued “Instructions for Oral Feeding and Drinking”. 

As well there's a second document that explains the pros and cons of doing so.  There are limits, according to the KHN article.

The guidelines do not apply to people with dementia who still get hungry and thirsty and want to eat and drink, the authors note. ... “If I accept food and drink (comfort feeding) when they’re offered to me, I want them,” the document states. ... But if the person appears indifferent to eating, or shows other signs of not wanting food — turning away, not willingly opening their mouth, spitting food out, coughing or choking — the document says attempts to feed should be stopped. ... And the guidelines tell caregivers to respect those actions.

As well, the KHN article notes, these are guidelines and are not required to be followed.

Mom Does Have a Favorite!

I grew up watching the Smothers Brothers and vividly recall their sibling rivalry...."mom always liked you best."  For elder law attorneys, the idea of the parent having a favorite child can be an important bit of information in the representation of the client. I've written about family matters beyond this blog.  I was interested in the recent article in Huffington Post covering family favoritism. Parents Really Do Have Favorite Child, No Matter What They Say. Finally, ANSWERS. opens with an amusing observation that if your parents have told you all along they don't have favorites, they weren't being truthful to you. "[S]cience tells a different story. In research that will vindicate self-pitying siblings everywhere, sociologist Katherine Conger’s recently resurfaced longitudinal study found what many have suspected all along: Parents totally have a favorite child."  The article discusses the study's hypothesis regarding birth order and who would feel favored. "The research also found that no matter a child’s birth order, every single one was suspicious of their parents liking another better. “Everyone feels their brother or sister is getting a better deal,” Conger said... So what do we make of all of this? For one, siblings have it tough. Always competing for their parents’ love, never knowing who’s ahead. But the good news for brothers and sisters is that the relationship serves tons of benefits: Having a sibling may make you more intelligent, more likely to have a stable marriage as an adult and can serve as a built-in support system. " The study referenced in the article is available for purchase.   

Check Out This New Report: New Guide on HCBS Settings Rule

The National Consumer Voice for Quality Long Term Care has issued a new guide, Understanding and Advocating for Effective Implementation of the Home and Community-Based Services Settings Rule.

Here's the introduction to the guide:

An important part of the practice of many elder law attorneys is assisting clients to receive and then benefit from Medicaid home and community-based services (HCBS). In March 2014, the Centers for Medicare and Medicaid Services (CMS) published the first ever regulations establishing standards for the settings in which HCBS are provided.1 These regulations will impact the services, quality of life, and rights of HCBS care recipients, as well as the environment in which they receive those services. Each state must develop and implement a plan for how it will come into compliance with the HCBS rules. The involvement of advocates, including elder law attorneys, in influencing the plan and monitoring its implementation is critical. This guide is designed to provide elder law attorneys with a better understanding of the HCBS settings rule and how they can advocate for a strong, effective system that achieves the spirit and intent of the rule.

The report notes that the reason for "HCBS Medicaid services is to be an alternative to institutional settings."  Thus, the rule's main reason "is to define the qualities that make a setting a home that is truly part of a larger community." Additionally, the rule is designed to confirm that those recipients really are part of their community. Last, but not least, the rule is intended to make the lives of these folks better as well as getting them more choice and protections. The report can be downloaded here.

 

 

 

Boomer Trends and the Coming Caregiving Crunch

The Future of Caregiving: The Coming Caregiving Crunch  is a report released in October 2917 by Merrill Lynch and Age Wave that  provides interesting data points to identify challenges and action items tied to aging in the U.S.  The information in the report was generated by surveys of more than 2,200 individuals, including "nonprofessional" caregivers.  

While perhaps it is tempting to assume we are already feeling the effects of retirement for the Boomer generation, this report reminds us that we still haven't had the "first" boomer hit 80 years of age, which is when the likelihood of needing care or assistance increases.

The report suggests that "denial" is a huge problem.  While 7 in 10 Americans turning 65 today will need "care for prolonged periods" in their later years, only 4 in 10 Americans believe they personally are likely to "ever" need such care.  Certainly Merrill Lynch has a goal to increase consumer awareness of a need for realistic financial planning, some of the most interesting parts of the report addressed not just the need for adequate savings, but the likelihood that families could benefit from "financial coordinators."  The report used this term for people with the skills to handle (or monitor/oversee) such tasks as:

• paying bills from proper accounts
• monitoring bank accounts and access to accounts
• handling insurance claims
• filing taxes
• managing invested assets 

The writers observe:  

Financial caregiving is nearly uncharted territory, with little research identifying the flow and pace of transactions that individuals and their families experience as they navigate the caregiving journey. Similarly, little has been studied about the ways in which caregivers and care recipients need help financially. As Boomers age, the need for assistance in tracking, managing and paying for care-related expenses in complex relationships is destined to grow.

The writers warn that family members are frequently unprepared for the responsibilities that caring for an elder may involve, especially given the fact that Boomers are much more unlikely than previous generations to living near their own children.  

What Makes Life Spectacular?

PBS NewsHour has been running a series of interviews, Brief but Spectacular, where the subject opines on the question: what vital things make life spectacular. They recently aired their 100th episode, which featured a person who is 92 years old and who has begun to have memory problems.  You can read the transcript here  or listen to the audio of the interview here.  Another interviewee, a 91 year old author, opines on aging with grace.  That transcript can be accessed here. You can access the full series here.

Unpartnered Americans-New Report from Pew

Pew Research Center issued a new FactTank report, The share of Americans living without a partner has increased, especially among young adults.  The article starts off with these statistics "[i]n the past 10 years, the share of U.S. adults living without a spouse or partner has climbed to 42%, up from 39% in 2007, when the Census Bureau began collecting detailed data on cohabitation."  So you are wondering, what does this report have to do with elder law? Well, here you go. "The rise in adults living without a spouse or partner has also occurred against the backdrop of a third important demographic shift: the aging of American adults. Older adults (55 and older) are more likely to have a spouse or partner than younger adults. So it is surprising that the share of adults who are unpartnered has risen even though relatively more Americans are older." The article explains the financial implications of being "unpartnered", not unsurprising to those of us in the field of elder law. This can be an important implication in terms of retirement security as well. The infographic breaking down the data by age is available here.

 

What Does It Mean To "Specialize" In Elder Law (or, for that matter, in any field of law)?

Recently, as a result of a reporter asking me to explain the significance of "certifications" for elder law attorneys, I found myself digging fairly deeply in order to respond.  The answers depend on definitions to three different, but related concepts:  expertise, specialization, and certification. 

I know that when I'm looking in a region of the U.S. where I don't personally know someone, I often start with the National Academy of Elder Law Attorneys' (NAELA) webpage that allows me to do a state or zip code search for member lawyers who identify as "elder law attorneys."  Also, depending on the issue, I look at numbers of years in practice, as well as areas within "elder law" that the individuals choose to identify as their areas of experience.  For example, are they more interested in retirement planning than, say, handling guardianships or conservatorships that might require litigation?  The NAELA attorney search engine allows members to provide this kind of information.

I also look to see if that attorney is a "Certified Elder Law Attorney" or CELA.  Or, because there are only about 500 CELAs in the United States, if I'm willing to consider a younger attorney, perhaps there is a CELA working in the same law firm or community, someone for a younger attorney to call for guidance.    

The CELA designation, which is usually listed on the NAELA website if a member holds such a designation, actually is earned from the National Elder Law Foundation or NELF, rather than NAELA.  It requires specific years of relevant experience handling elder law matters (at least 5 years), peer recommendations, participation in at least 3 years of continuing legal education focused on elder law, and passage of a day-long exam that covers the waterfront on elder practice-related issues.  The exam includes both essay and multiple-choice questions, addressing 5 "core" areas and 7 additional areas. A very seasoned attorney I know well and would recommend regardless of any "certification," once told me he didn't pass the CELA exam on the first attempt. He studied harder and passed it the next time and he likes to see lawyers in his firm seek the certification.

NAELA is a membership organization and NELF is a certifying organization, and each have relevant information to offer consumers about elder law practitioners.  (Historically, a group of NAELA lawyers helped to start the NELF organization, but the two entities have separate missions now.) Thus, I use NAELA to identify attorneys with experience and interest in elder law, and look for the Foundation's  CELA designation as a way to measure "expertise," as it  requires a mixture of objective information and testing and more subjective, but still important information from peers, to show engagement in the specialized field.  

In many states, the CELA certification also allows individuals to hold themselves out as "specialists" in elder law in advertising and communications with the public, because pursuant to professional conduct rules (e.g., Model Rule of Professional Conduct 7.4), that state has "approved" NELF as a "certifying" organization.   Each state decides for itself what certification or other measures of experience and expertise to use in deciding whether an attorney can advertise any particular "specialization." 

But what about a consumer who is trying to make an informed choice about an elder law attorney without first being aware of those organizations?  I suspect the consumer might turn to the state's Bar Association or Supreme Court websites for information.  While bar associations don't "recommend" attorneys, states do have regulatory bodies for lawyers that set standards for when and how lawyers can call themselves "specialists" in elder law or in any field of law. 

Continue reading

Another Tech Innovation in Aging - "Illusions of Nature"

One of my favorite parts of the LeadingAge Annual Meeting is my first tour of their Expo.  Law conferences are so dull by comparison!  There are hundreds of vendors at the LeadingAge expos.  You can find a smorgasbord of senior housing options, architects eager to help you with your purpose-designed projects, all kinds of communications systems, management software and health-related devices, even cooking classes. I often find information that helps my research, including data complications by actuaries, accountants and marketing firms about trends in housing and care systems.  This year I heard about an "app" in development with a university team that included law students, to offer caregivers options to identify potential concerns, such as financial abuse. 

In the years I can attend, I keep my eyes open for my own personal "That's Creative" award.  This year, it was the Sky Factory -- where, using solar energy, the company offers a wide variety of windows, skylights, and other wall installations -- but with a twist.  These portals offer "award winning illusions of nature." Overhead views show clouds and trees, rustling in the wind.  Another window might offer a view of an especially pleasant beach, with waves in motion. That is why the designs need energy, appropriately solar energy, to keep the images in motion.   

Perhaps most unique, some of the images are designed so as to offer subtle changes triggered to the time of day (or night).  Sunlight plays across the images of nature, and shadows move with the sun.  The goal is for individuals who are house-, chair- or bed-bound to engage with nature, with the hope the engagement will stimulate mental response and circadian rhythms in the body.  The use of this product is not limited to seniors, or even disabled persons.  

Tired of Those RoboCalls?

You aren't the only one.  A number of times elders are targets.  The Senate Special Committee on Aging held a hearing on October 4, 2017, "Still Ringing Off The Hook: An Update on Efforts to Combat Robocalls”    The testimony came from two committee members and 4 witnesses, including Lois Greisman, the Associate Director, Division of Marketing Practices, Bureau of Consumer Protection of the FTC and PA AG Josh Shapiro. You can watch the video of the hearing or download individual testimony as pdfs by clicking here.

More From the 19th Annual Stetson Special Needs Trust Conference

I wanted to use this post to highlight some other things that I learned by visiting with folks at the conference.  Fellow Floridian Nick Burton handed me a business card and a lapel pin for Florida Adaptive Sports. "Florida Adaptive Sports [is] funded by AGED, Inc. as a part of its mission to give back to the community in the form of providing resources, opportunities and awareness for Florida’s disabled community."  I stopped by to chat with the folks from  Stephen's Place  which provides housing for individuals with special needs, but not quite the same as a CCRC since no SNF living is provided (Stephen's Place, an adult care home, is located on the west coast and offers independent and assisted living in a more urban setting) but they do work with families when a resident needs that level of care.

I was chatting as well with the folks from Mobility Support Systems,  another exhibitor, about the issues in renting a wheelchair accessible van when flying into an airport.  If someone is visiting mom who is in a wheelchair and wants to take mom out for dinner or shopping, what are the options? I thought renting a wheelchair van might be a good solution, but I'm not sure whether the typical rental car companies offer that vehicle.  The folks at the booth told me they keep a list for the various airports. It's so helpful to have that info available when making arrangements for the family visit!

I was also pleased to chat with a number of exhibitors who offer a variety of services designed to keep folks independent, and several offer fiduciary-type services. These are just some examples of learning things both inside and outside the classroom.  For more info about our conference, click here.

LeadingAge: Hot Topics for Attorneys Who Advise Clients in Senior Housing and Service Industries

This week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel."  As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.  

But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions.  I'm sorry I did not have time to stay longer after the program, before heading to the airport.  They were very clear and interesting speakers, with healthy senses of humor.

The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.

Whew!  Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing?  The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.

On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents.   The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos.  Copyright rules and the growing efforts to ensure payments are the reasons.  

The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why.  For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.  

It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and  Health Care Communities" in 2016.  Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.   

"America Freed From Ageism" - a LeadingAge Goal

LeadingAge President and CEO Katie Smith Sloan spoke at the Sunday morning (10/29/17) session of NACCRA's meetings in New Orleans.  Having taken the reins of LeadingAge after Larry Mannix, it's long time leader who retired in 2015, Katie seems to be settling in well.  She identified several themes for LeadinAge's immediate future, including: 

• Advocating for an "America Freed From Ageism." Katie observing that this negative bias stands in the way of policy, philanthropy, and hiring in all of the nonprofit senior living and senior service sectors.
• Making LeadingAge "the" trusted voice for aging.  She emphasized this goal is all about building relationships and she pointed to several recent high level policy meetings in DC where LeadingAge was invited as a key voice for older adults or the industry.
• Katie also reported that LeadingAge received an outpouring of donations for its disaster relief fund, with over 600 donations.  So far the total is more than a half million dollars.  She gave examples of how these donations were already helping nonprofit providers affected by the recent hurricanes and fires, including helping staff members who had lost their homes to find housing and helping 3 affordable senior housing communities maximize insurance relief by using donations to pay-down deductibles. 

In the Q and A with NaCCRA members, Katie said that LeadingAge and NaCCRA can and should work together to identify common topics for joint efforts, especially on public policy advocacy.  

I'm aware that some NaCCRA members are discouraged (or perhaps frustrated is a better word) by a perception that LeadingAge tends to ignore policy points urged by NaCCRA, while still expecting NaCCRA members to support LeadingAge's positions.  Time will tell whether NaCCRA was being too tactful in raising this partnership project concern.