Elder Law Prof Blog

Special Touches in an Elder Law Practice

I'm always interested in the special touches some elder law attorneys bring to their practices, and I've written previously (not necessarily on this blog) about them. Years ago, I remember a friend and preeminent elder law attorney, Ray Parri, decided to have office pets-he was the first I'd heard to do so (really it was a long time ago).  He routinely had cats, and I know at one point he had two office cats, one named Mason and the other named Perry (if you get the reference I know your generation!).  It's not only special touches but also special events that can set elder law attorneys apart from others, IMHO.   Here's one upcoming that illustrates my point.  Our alum, Stephanie Edwards,  has an upcoming caregiver event, titled "Caregiver's Holiday Paws Pause."  With several other agencies and a local church, this event offers 3 hours of staffed respite care for for folks who have caregivers, resources for caregivers, 90 minutes to interact with adoptable animals (and maybe they will get a new home for the holidays) and a presentation by a dementia coach. I'd be interested in hearing about other unique events from elder law attorneys, so let me know!

 

Student Views of Recent Events

I gave my students an assignment to write a blog post on a current event that would be of interest in a class on law and aging.  Here are two that I've received---I thought you might find them interesting.

Post #1

This was supposed to have been a fun family weekend.  My sister-in-law was headed home with a car filled with special treats and presents to celebrate my niece's sweet sixteenth birthday.  The weather was clear and traffic was moving smoothly when the crash occurred.

A ninety year old drove through a stop sign and directly into traffic, causing a multi-car accident.  My sister-in-law had to be cut from her SUV and taken to the trauma center.  I saw her crumpled vehicle first-hand, and it is an absolute wonder she survived.  It is uncertain how long her injuries will significantly impact her life.  Yet, she was the incredibly lucky one.

A young couple and their infant was also struck by the elderly driver's car.  Seeing this family's vehicle was horrific.  I knew the infant was in critical condition at the hospital.  When I saw this car, it looked as if it had been in a compactor; it didn't seem possible for anyone to survive.  Unfortunately, the infant didn't. 

As those involved in the accident struggle to heal and make sense of the tragedy, my heart goes out to the family of the elderly driver.  I have so many questions.  I wonder...did family members recognize the signs that their loved one should no longer be driving?  Did they try to intervene?  Was the driver aware of taking the wheel?  Is he aware now?  How will the driver and family cope with the legal and emotional burden of this accident?  What more can be done to prevent this kind of heartbreak?

https://www.msn.com/en-us/autos/news/multi-car-crash-injuries-four-people-including-an-infant/ar-AAHgwJn

https://seniordriving.aaa.com/resources-family-friends/conversations-about-driving/facts-research/

https://www.agingcare.com/Articles/signs-elder-unsafe-driver-153264.htm

Post #2

Elders in Politics: Perceptions of elders in the 2020 election

Brandy Orth Becker

While the perception and social utility of elders in the United States has always been a topic of discussion, throughout American history, there is a revamping of this discussion with the perspective of another elder ( 65+) as President of the United States of America.

Some common associations with the concept of getting older are memory loss, confusion, social dissonance, etc. All of these factors go to the sharpness of the mind and the ability to understand and process information. These factors are such that if relevant, any leader of a nation could be called into question.

Vice President Joe Biden has been the most clearly targeted in this 2020 election as far as ageism. Despite the fact that many who take the stage at a political debate have a tendency to jumble words, forget details, or misspeak, his errors are being connected automatically to senility and attributed to his age. After an inconsistent statement by Biden in the democratic presidential primary debate in Houston, co-candidate Julian Castro insinuated that Biden was unable to recall the statements that he had just made moments ago (See article). The internet in a quick response, picked up on the insinuations of Mr. Castro. As a result, any actual factual or political statements made by Biden in the debate were overshadowed by a discussion/parody of his age and capacity to lead as an elder.

At 72, Vice President Joe Biden is the oldest among the democratic candidates in the 2020 election. However, with his age comes a very impressive career in the political realm, making him one of the most politically experienced candidates among the bunch. It will be up to the American People in anticipation of, and at the polls, to weigh these facts, and to decide if age will in fact play a factor in disqualifying a presidential candidate.

See article: https://www.dailywire.com/news/51715/elder-abuse-julian-castro-shreds-joe-biden-over-eric-quintanar

Jimmy Carter Jokes About How Old Is Too Old To Be President

Per a story recently in CNN, Jimmy Carter jokes 'I hope there is an age limit' on presidency.

Former President Jimmy Carter said if he were 80 years old he would not be able to handle the responsibilities of being President and joked that he hopes there is an "age limit" on the office.

The comments from the 94-year-old former commander-in-chief are especially notable as the age of the three top Democratic 2020 presidential hopefuls, who are in their 70s, has been the subject of ongoing debate. The 39th president didn't mention any Democratic candidates by name at a town hall at the Carter Center in Atlanta on Tuesday night when he was asked if he might consider running for a second, non-consecutive term.

"I hope there is an age limit," he said as the audience laughed. "You know, if I were just 80 years old, if I were 15 years younger, I don't believe I could undertake the duties that I experienced when I was President."

Carter said the presidency requires mental fortitude and one must "be able to adapt to new ideas."

. . .

"So the things I faced then in foreign affairs, I don't think I could undertake them when I was 80 years old. So 95 is out of the question. I had a hard time walking when I came in," said Carter, whose birthday is on October 1.

Happy early birthday President Carter. This article can be part of an interesting discussion in our classes about the considerations of age.

Thanks to one of my students for sending me this article!

Special Needs Trust Failing?

Kiplinger recently ran an article, How a Special Needs Trust for Your Child Can Fall Apart,  which explains

Parents of disabled children must juggle a lot of responsibilities: work, bills and of course caregiving. But one ball they can’t afford to drop is special needs planning. One wrong move in this complicated ballet balancing benefits and services with asset rules could be disastrous. While every family’s situation is unique, the laws regulating special needs trusts are complex and can require some strategizing by families and trust companies — and if necessary, utilization of available government and nonprofit support programs. 

The article reviews the laws, the requirements for a valid third party SNT and highlights one person's experiences, an attorney's advice for the person and advice for parents of children with special needs.

The key takeaway from this story is that it is essential that parents of a disabled child learn about federal, state, local community, charitable and other nonprofit support programs that may help. They must also discuss eligibility rules with relatives who may want to make gifts for the child, leave a share of their estate, include the child in a beneficiary designation for a retirement plan or life insurance or provide other types of in-kind support and maintenance.

Finally, setting up a special needs trust requires planning, legal and financial expertise, and the proper and compassionate administration of a professional trustee.

Elder Justice Policy Highlights

USC has published  Elder Justice Policy Highlights for March-August 2019. The introduction explains that

"[t]he elder justice legislation found in this document was elicited and finalized from the National Center on Elder Abuse (NCEA) Listserv and independent websites in August 2019. The compilation is intended to reflect highlights across the nation and does not include all legislation related to elder justice. However, updates will be sent quarterly and states are encouraged to send updates on significant legislative action to Ageless Alliance. This document reflects activity in 17 states and highlights at the federal level.

The report divides the information by federal and state, includes a summary for each development as well as a link to view the information online. It also includes a section of pending activity that deserves a look.

This is a great resource and provides students with a quick snapshot of activities across the country.

GAO Report on Elder Abuse & Oversight

The GAO has issued another report on quality in nursing homes and ALFs. This report, Elder Abuse: Federal Requirements for Oversight in Nursing Homes and Assisted Living Facilities Differ

reports

The Centers for Medicare & Medicaid Services (CMS) oversees the Medicare and Medicaid programs and is responsible for safeguarding the health and welfare of beneficiaries living in nursing homes and assisted living facilities. This includes safeguarding older residents from abuse—referred to as elder abuse. CMS delegates responsibility for overseeing this issue to state survey agencies, which are responsible for overseeing nursing homes. When assisted living facilities provide services to Medicaid beneficiaries, they are indirectly subject to CMS oversight through the agency’s oversight of state Medicaid agencies. GAO found that there are specific federal requirements for nursing homes and state survey agencies for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes. (See table below). For example, state survey agencies must prioritize reports of elder abuse in nursing homes based on CMS’s specified criteria and investigate within specific time frames. In contrast, there are no similar federal requirements for assisted living facilities—which are licensed and regulated by states. Instead, CMS requires state Medicaid agencies to develop policies to ensure the reporting and investigation of elder abuse in assisted living facilities. For example, CMS requires that state Medicaid agencies establish their own policies and standards for prioritizing reports when investigating incidents in assisted living facilities. Officials from the three selected states in GAO’s review said they apply certain federal nursing home requirements and investigation time frames for assisted living facilities when overseeing elder abuse.

Here's part of what the GAO did in investigating the issue:

To describe federal requirements for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes and assisted living facilities, we reviewed relevant statutes and regulations and CMS guidance, including the State Operations Manual and HCBS waiver guidance and interviewed CMS officials regarding the agency’s oversight of the requirements. We selected a non-generalizable sample of three states—Connecticut, Oklahoma, and South Dakota—that have implemented HCBS waivers and vary in HCBS waiver program size and geography.10 In each state, we reviewed their waiver agreements and spoke with officials from the state survey agency, state Medicaid agency, and the state agency responsible for licensing assisted living facilities and investigating complaints.11 We also interviewed CMS officials, including regional office officials, about their oversight of state survey agencies and HCBS waivers in our selected states. We interviewed representatives from national stakeholder groups representing consumers, facilities, Medicaid directors, and investigators to obtain their perspectives on elder abuse in nursing homes and assisted living facilities. We also reviewed related audits issued by the HHS-OIG and state auditors between 2014 and 2018 related to reporting and investigating elder abuse in nursing homes and assisted living facilities and included them with a discussion of related GAO reports.

The full report is available here.

 

Should Chronological Age Be A Factor In Deciding Someone Is Too Old To Be President?

The American Federation on Aging Research (AFAR) released a white paper, Longevity and Health of
U.S. Presidential Candidates for the 2020 Election:  White paper from the American Federation for Aging Research. Here is the abstract from the white paper:

Abstract: The oldest person ever elected president of the U.S. could take office in 2021 – but questions about the health and longevity prospects of presidential candidates are now relevant given the advanced age of many of the candidates. In the absence of medical records, assessing health, longevity, and survival prospects for candidates requires the use of data from national vital statistics. Here we estimate the lifespan, healthspan, disabled lifespan, and four-year survival probabilities for U.S. citizens that match the attributes of all of the candidates and the sitting president for the next two election cycles. Results suggest that chronological age should not be a relevant factor in the forthcoming election.

There has been some discussion about the age of candidates, so it's interesting to think about the research on the topic, and it can be a useful tool for a discussion with students. Here's the conclusion to the report:

Conclusion

Dr. David Scheiner stated that it is not acceptable to take the word of candidates or sitting presidents that they are healthy, and therefore candidates should make their medical records public so voters can make decisions based on a full disclosure of any medical conditions. At one level this makes sense because harboring a lethal condition that could lead to death while in office, might influence how people vote -- or at the least, lead voters to pay more attention to the choice for vice president. Yet, if a candidate is healthy today, it is unclear whether future health status should ever be a criterion used to judge a presidential candidate. The voting public and legal scholars need to weigh in on whether or not medical records should be required to be disclosed by candidates or a sitting president.

With regard to the relevance of age in deciding whom to vote for, estimates of healthspanr ealistically suggest that some of the presidential candidates are at a higher risk of experiencing some level of frailty and disability during a first or second term in office because they are older.

Health and longevity challenges are closer for candidates now in their 70s relative to those younger because age is an established risk factor for fatal and disabling conditions; but despite this, many survive to their 80s and 90s with their mental and physical capacities largely intact. Without an ability to know in advance who among the candidates might fall into this category, chronological age itself should not be used as a sole disqualifier to run for or become president.

If the lower limit of age 35 was chosen by America’s founding fathers because they envisioned the presidency requiring the experience, maturity, and wisdom that comes with age; or that time allows the voting public to make judgments based on a candidate’s established track record; then one could make the case that the most qualified among the available candidates are older. Given the favorable health and longevity trajectories of almost all of the presidential candidates relative to the average member of the same age and gender group in the U.S., and the apparent current good health of all of the candidates, there is reason to question whether age should be used at all in making judgments about prospective presidential candidates.

Do You Have A When I Die File?

Do you have your estate planning documents done? Made funeral arrangements? Think you have everything covered? Well, did you make a "when I die file?"  According to an article in Time magazine, Why You Need to Make a 'When I Die' File—Before It's Too Late this file is likely

the single most important thing you do before you depart. It may sound morbid, but creating a findable file, binder, cloud-based drive, or even shoebox where you store estate documents and meaningful personal effects will save your loved ones incalculable time, money, and suffering. Plus, there’s a lot of imagination you can bring to bear that will give your When I Die file a deeper purpose than a list of account numbers. One woman told us she wants to leave her eulogy for husband in the file, so she can pay homage to him even if she goes first.

Without such a file, the process of compiling the information can be time-consuming and emotionally draining for the family. Here are some of the tips from the article

First, call the companies behind your cable, internet, cell phone, club memberships, and anything else that bills for services on an ongoing basis and add your partner or kids to the account as a joint owner. If billing accounts are not in both your and a loved one’s name, your survivors will end up spending hours on the phone and in offices begging bureaucrats to shut them down or convert the accounts to their name so they can manage them. Think of every frustrating call you’ve had with your cell provider, and then multiply it by 10.

***

Here are a few of the things you’ll put into your “When I Die” file:

□ An advance directive that’s signed (and notarized if necessary)

□ A will and living trust (with certificate of trust)

□ Marriage or divorce certificate(s)

□ Passwords for phone, computer, email, and social media accounts

(We recommend using an online password manager to collect them all, sharing the master password with someone you trust, and then designating emergency contacts within the program who are allowed to gain access.)

□ Instructions for your funeral and final disposition

□ An ethical will

□ Letters to loved ones

There is more information about the file in the book on which this article is based, Beginner’s Guide to the End. 

Faith Based Colorado Hospital Fires Dr. Who Planned to Help With MAD

Although it's been a bit of time since Colorado 's medical aid-in-dying (MAD) law went into effect, but recent events suggest the topic has not been settled. According to Kaiser Health News, Firing Doctor, Christian Hospital Sets Off National Challenge To Aid-In-Dying Laws

A Christian-run health system in Colorado has fired a veteran doctor who went to court to fight for the right of her patient to use the state’s medical aid-in-dying law, citing religious doctrine that describes “assisted suicide” as “intrinsically evil... [the doctor] had planned to help her patient...   end his life at his home [the patient] is eligible to use the state’s law, overwhelmingly approved by Colorado voters in 2016."

This illustrates the clash between faith-based hospitals and state laws. "As hospitals across the country have consolidated, five of the top 10 hospital systems by net patient revenue are associated with the Roman Catholic Church ...  [t]hat includes hospitals that did not previously have any religious affiliation. Meanwhile, there are 10 U.S. jurisdictions where aid-in-dying has been approved and public support for the option is increasing."

Stay tuned-this is going to take a while to be resolved through the courts.

Long-Term Care Hospitals

A recent story from the New York Times highlights the role of long-term care hospitals in carrying for elders. For Older Patients, an ‘Afterworld’ of Hospital Care explains that for these long-term care hospitals, sometimes referred to as " a long-term acute care hospital"... is where patients often land when an ordinary hospital is ready to discharge them, often after a stay in intensive care.But these patients are still too sick to go home, too sick even for most nursing homes." 

Never heard of these LTCH?  There are a fair number of them, and they treat quite a large number of individuals."Close to 400 such hospitals operate around the country, some free-standing, others located within other hospitals, most for-profit. They provide daily physician visits, high nurse-to-patient ratios and intensive therapy...In 2017, they accounted for about 174,000 hospital stays. Medicare covered about two-thirds of them, at a staggering cost of $4.5 billion, the Medicare Payment Advisory Commission has reported."

A recent study published in the Journal of American Geriatrics Society notes poorer outcomes for these individuals. The article notes that there is a decline in the use of these hospitals, with tighter regulations and more stringent patient requirements.  Oftentimes the LTCH is a stop between the hosptial and nursing home.  This "should prompt frank discussions among families, doctors and patients about whether a frail older person leaving an intensive care unit or standard hospital truly wants to spend another month or more in an L.T.C.H. and then move to a nursing home, which is the likely scenario."  There are other options and the article notes the importance of having a conversation with the patient and family about them.

 

How to Make Health Care Age-Friendly

A story in Kaiser Health News, In Search Of Age-Friendly Health Care, Finding Room For Improvement highlights needed design improvements within health care facilities.

For older adults, especially those who are frail, who have impaired cognition, or who have trouble seeing, hearing and moving around, health care facilities can be difficult to navigate and, occasionally, perilous.

Grab bars may not be placed where they’re needed. Doors may be too heavy to open easily. Chairs in waiting rooms may lack arms that someone can use to help them stand up.

Toilets may be too low to rise from easily. Examination tables may be too high to get onto. Lettering on signs may be too small to read. And there may not be a place to sit down while walking down a hallway if a break is needed.

Examining the changes from the "ground-up" so to speak, the article starts with the issues from poorly thought-out parking: inconvenient location of the lot to insufficient spaces for those with disabilities. Don't forget signage---is there enough? Is it logically located? Is it hard-to read? (think poor contrast, glare or hard-to read fonts). Then there are steep ramps, a lack of available walkers and wheelchairs to borrow at the facility's entrance and a lack of automatic doors. Ever been asked by the receptionist to take a clipboard of forms to fill out at your seat? Of course-no big deal--unless you use a walker or two canes--talk about having your hands full!  Oh and let's get started about seats--too low, too soft, no arms or all with arms!

The article is an interesting read and hopefully those who design health care facilities will think about these things--because humans don't all come in one size or all have the same abilities or needs.

Living On Campus-Not Just College Students But Retired Individuals

The New York Times ran an article about, At Colleges, What's Old is New: Retirees Living on Campus.

This story focuses on "a growing number of colleges sponsoring retirement communities on campus or thinking about it." The schools promote the educational impact of this, but of course there can be a monetary benefit to the college.

The schools say their motive is more educational and social — encouraging intergenerational mixing — than financial. But the communities promise a new revenue stream for institutions that are coping with reduced state operating support and declining college enrollment in many parts of the country. They are bringing a new generation (or old generation) to c ampus to fill classes, eat in dining halls, attend student performances and become mentors.

Not everyone supports the concept, with concerns about older people complaining about noise from parties, and the recognition that their presence in the classroom can change the dynamics, without the same stakes, since only the younger people take the classes for grades. But that's not guaranteed to happen and in fact, the opposite may occur. One couple quoted for the article "say the whole reason they are moving to ...  College and not to Miami is that they like to stay up late and party. [They] believe[] that the other residents will be the same — not your parents’ grandparents. “They’re forward thinkers, not the ones to go down to Florida and order the early bird special...."

The article features several colleges that are implementing the concept.  The cost may be too steep for some.  There are different approaches being adopted. It all is very interesting.

Check it out!

Two Upcoming Webinars on Important Topics

There are two upcoming webinars that I wanted to alert you about so you can register.  The National Center on Elder Abuse is hosting a webinar on September 18, 2019 from 3-4 edt, on Recognizing and Addressing Abuse in Long-Term Care Facilities. According to the email announcement

People living in long-term care (LTC) facilities can be vulnerable to abuse and neglect. Recognizing and addressing abuse and neglect in LTC facilities as well as knowing their rights is crucial for both residents and their family members.   

This webinar presented by the Paralysis Resource Center will help to understand the rights of residents of LTC facilities, identify the signs of abuse and neglect, and learn how to report concerns and complaints to the appropriate agencies. Attendees will learn about the important role of the Long-Term Care Ombudsman Program in addressing complaints and how to contact the program. The webinar will also seek to empower people with paralysis and their family members by providing information on choosing a long-term care facility and tips for advocating for quality care. 

The webinar will be presented by Amity Overall-Laib, Director of the National Long-Term Care Ombudsman Resource Center (NORC). Amity served as a local long-term care ombudsman in Texas for six years advocating for residents in 65 nursing homes and 130 assisted living facilities in a 12-county region. During her tenure in Texas, she led the formation of the Gulf Coast Culture Change Coalition, resulting in two free conferences for long-term care consumers, providers, advocates and regulators promoting culture change practices and has presented at local, state, and national conferences. She also had the pleasure of representing fellow local ombudsmen on the Board of Directors for NALLTCO (National Association of Local Long-Term Care Ombudsmen). Amity was previously a consultant to NORC then served as Manager for Program and Policy. 

To register, click here.

Next, the National Center on Law & Elder Rights is hosting a webinar on Issues at the Intersection of Social Security and Medicare on October 8 at 2 eastern time. According to the email announcement,

Social Security benefits and Medicare benefits are closely intertwined, and most people who receive one also receive the other. The close connection means that a problem with one benefit will sometimes cause problems with the other benefit. It can be difficult to figure out which agency is responsible and where to go for relief. This webcast will focus on why cross-program issues occur and what advocates can do to resolve them.

Presenters will share:

• Agencies and key players: Who is in charge of what?
• Situations when Medicare and Social Security benefits are linked and when they are not.
• Issues that arise and strategies for resolving them, including state buy-in issues for Medicare Part B premiums, and challenges keeping Medicare active during an appeal of the termination of Social Security disability benefits.

To register, click here.

Hunger Amongst America's Elders

Kaiser Health News addressed the topic of hunger amongst elders in Starving Seniors: How America Fails To Feed Its Aging.

This is incredibly sobering

[M]illions of seniors across the country quietly go hungry as the safety net designed to catch them frays. Nearly 8% of Americans 60 and older were “food insecure” in 2017, according to a recent study released by the anti-hunger group Feeding America. That’s 5.5 million seniors who don’t have consistent access to enough food for a healthy life, a number that has more than doubled since 2001 and is only expected to grow as America grays.

While the plight of hungry children elicits support and can be tackled in schools, the plight of hungry older Americans is shrouded by isolation and a generation’s pride. The problem is most acute in parts of the South and Southwest. Louisiana has the highest rate among states, with 12% of seniors facing food insecurity. Memphis fares worst among major metropolitan areas, with 17% of seniors like [one mentioned in the article] unsure of their next meal.

You're thinking to yourself, surely there are options. What about those federally funded meals programs? Something else? Uh....not likely.

[G]overnment relief falls short. One of the main federal programs helping seniors is starved for money. The Older Americans Act — passed more than half a century ago as part of President Lyndon Johnson’s Great Society reforms — was amended in 1972 to provide for home-delivered and group meals, along with other services, for anyone 60 and older. But its funding has lagged far behind senior population growth, as well as economic inflation.

The biggest chunk of the act’s budget, nutrition services, dropped by 8% over the past 18 years when adjusted for inflation, an AARP report found in February. Home-delivered and group meals have decreased by nearly 21 million since 2005. Only a fraction of those facing food insecurity get any meal services under the act; a U.S. Government Accountability Office report examining 2013 data found 83% got none.

Oh and by the way-the act expires at the end of this month-it's now up to COngress to reauthorize and determine its budget.  Food stamps may be an option, but "only 45% of eligible adults 60 and older have signed up for ... SNAP, the food stamp program for America’s poorest. Those who don’t are typically either unaware they could qualify, believe their benefits would be tiny or can no longer get to a grocery store to use them."

Government programs have long wait lists but there are those who get help, "2.4 million people a year benefit from the Older Americans Act’s group or home-delivered meals, allowing them to stay independent and healthy."  Poor diet, hunger, and starvation have significant consequences, in some instances resulting in major health issues or even death.

Where you one of those kids growing up whose parent said something along the lines of "eat your vegetables (or clean your plate), there are children starving in (insert country)?  Nowadays it may be "eat your vegetables, grandma is starving...."

Keep an eye on Congress' actions on reauthorization-it's important!

 

When It's Time to Evacuate-It Takes More TIme

Dorian was a bad, bad storm. For those of you who don't live in hurricane country, it may be hard to grasp the magnitude of needed preparations.  Every area of the country has natural disasters, some (like hurricanes) coming with more notice than others.  How far in advance should authorities order an evacuation, knowing the course can change (see, e.g. Dorian).  There needs to be enough time to move those who are medically , cognitively or physically comprised.  The New York Times examines preparations in 

Hurricane Dorian Tests Florida’s Ability to Move Older Adults Out of Harm’s Way.

Remember Hurricane Irma? The Florida authorities certainly do.

The last major Atlantic storm to hit the state was foremost in officials’ minds. When Hurricane Irma came ashore two years ago, a dozen patients died after a nursing home in Hollywood, Fla., lost its air-conditioning. The tragedy prompted new regulations and an acknowledgment that evacuation orders were not enough to protect the state’s large older population. When it comes to older people, no state has more retirees than Florida, where they make up one-fifth of the population, according to the AARP.

A new state law requires backup generators and enough fuel to maintain comfortable temperatures at nursing homes and assisted living centers, a mandate first tested last year when Hurricane Michael struck the Florida Panhandle. Last week, four nursing home workers were charged in the Hurricane Irma deaths, which were ruled homicides.

Remember the article from a few days ago about the elevator being out of repair?  Look at this: "Jacksonville, Fla., officials advised residents with just a few hours’ notice that it would disable its elevator on Monday afternoon." That leaves residents with two choices: go now, or not be able to go at all, without someone physically getting the resident down the stairs.

Lots of folks live in Florida nursing homes, especially in S. Florida, according to the article. After Irma, Florida now requires SNFs and ALFs to have emergency generators. The week before the threat of Dorian, "[t]he Miami Herald reported ... that nearly 60 percent of the state’s 687 nursing homes did not yet have enough power backup."

The article offers examples of some facilities in Florida that implemented their emergency evacuation plans. In some parts of Florida, we were very lucky. Those in Dorian's path, from the Bahamas on, were not.  In case you missed it, hurricane season goes til the end of November 

CAP-Impact Podcast: Data Driven Practices for Protecting Older Adults

Recently I had the enjoyable experience of being interviewed by Jon Wainwright, Project Manager for the Capital Center for Law and Policy at McGeorge School of Law, University of the Pacific.  He asks great questions.  His podcast project, CAP-Impact, is a well-developed resource to foster nonpartisan understanding of law and policy, offering a wide array of discussion topics, ranging from the role of lobbyists to science-based support for law reform. 

The interview focused on the Guardian Education Project I'm working on currently with community stakeholders, law students (Summer 2019 Team pictured here)  and faculty, with financial support from Penn State University.  This project is an outgrowth of the Pennsylvania Supreme Court's  Elder Law Task Force that recommended changes in procedures and policies governing adult guardianships in Pennsylvania, including better education for new guardians.  

For the actual podcast -- about 25 minutes in length -- go to  Episode 53: Data Driven Best Practices for Protecting the Elderly with Professor Katherine Pearson. 

Don't forget to "like" it -- or whatever is appropriate as support for Jon's podcast project.  As he amusingly pointed out, "elder law" isn't usually considered to be a sexy area for researchers, but as he demonstrates, what happens with older adults or others in potential risk of neglect or exploitation, is important!  

Happy Places to Retire

With Dorian finally moving on, I thought it would be good for all of us to post something that was happy. So Kiplinger ran an article, 10 of the Happiest Places to Retire in the U.S.  According to the article, these "10 retirement destinations rank the highest in terms of the overall well-being of residents."  These are Charlottesville, VA; Ann Arbor, MI: Portland, ME;Carlsbad, CA; Durham-Chapel Hill, NC; Cape Coral, FL; Richland, WA;; Provo, UT; Charleston, S.C.; and Burlington, VT. Not having lived in these, I can't comment on if they are happy places to live.

To come up with the rankings, Kiplinger relied on the "Well-Being index" which the article explains " is based specifically on residents' feelings about five elements of well-being: "purpose" (liking what you do and being motivated to achieve goals), "social" (having supportive relationships and love), "financial" (managing your budget to feel secure), "community" (liking where you live) and "physical" (being in good health). "  Using this index, then Kiplinger "factored in the "community" and "physical" components of the Well-Being Index, where available, as well as living costs, safety, median incomes and poverty rates for retirement-age residents and the availability of recreational and health care facilities."

The article is available here.

Mediation & Arbitration in Florida Probate Rules?

Proposed amendments to the Florida Probate Rules are out for comment. These amendments allow for  the use of mediation and arbitration. "The amendments provide that the court may refer all or any part of a contested probate or guardianship matter to mediation or arbitration, thereby empowering courts and parties with the option of using non-adversarial dispute resolution processes to resolve these disputes."

Here's some info about the proposed rules:

Rule 5.181 Rules Common to Mediation and Arbitration(a)Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested probate or guardianship matter to mediation or arbitration. The parties to any contested probate or guardianship matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral. (1)Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral. (2)Notice. Within 15 days after the designation of the mediator or arbitrator, the court or its designee, who may be the mediator or the arbitrator, shall notify the parties in writing of the date, time, and place of the conference or hearing, unless the order of referral specifies the date, time, and place. (b)Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration, if: (1)the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law; (2)the issue presents a question of law only; (3)the order violates rule 1.710(b) or rule 1.800; or(4)other good cause is shown.

(c)Motion to Defer Mediation or Arbitration. Within 15 days of the order of referral, any party may file a motion with the court to defer the proceeding. The movant shall set the motion to defer for hearing prior to the scheduled date for mediation or arbitration. Notice of the hearing shall be provided to all interested parties, including any mediator or arbitrator who has been appointed. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation or arbitration shall be tolled until disposition of the motion.

(d)Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying themselves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.

Proposed Rule 5.182, "Mediation Rules", provides the parties can agree to mediation or the court can order it on the court's own motion.  However, section 5.182(b) precludes from mediation matters concerning bond, contempt and other matters as determined in an administrative order. Likewise, Proposed Rule 5.185 covers matters excluded from arbitration. Proposed Rule 5.183 covers procedures for mediation and proposed rule 5.184, completing mediation.

The proposed rules are available here.

Mediation & Arbitration in Florida Probate Rules?

Proposed amendments to the Florida Probate Rules are out for comment. These amendments allow for  the use of mediation and arbitration. "The amendments provide that the court may refer all or any part of a contested probate or guardianship matter to mediation or arbitration, thereby empowering courts and parties with the option of using non-adversarial dispute resolution processes to resolve these disputes."

Here's some info about the proposed rules:

Rule 5.181 Rules Common to Mediation and Arbitration(a)Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested probate or guardianship matter to mediation or arbitration. The parties to any contested probate or guardianship matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral. (1)Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral. (2)Notice. Within 15 days after the designation of the mediator or arbitrator, the court or its designee, who may be the mediator or the arbitrator, shall notify the parties in writing of the date, time, and place of the conference or hearing, unless the order of referral specifies the date, time, and place. (b)Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration, if: (1)the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law; (2)the issue presents a question of law only; (3)the order violates rule 1.710(b) or rule 1.800; or(4)other good cause is shown.

(c)Motion to Defer Mediation or Arbitration. Within 15 days of the order of referral, any party may file a motion with the court to defer the proceeding. The movant shall set the motion to defer for hearing prior to the scheduled date for mediation or arbitration. Notice of the hearing shall be provided to all interested parties, including any mediator or arbitrator who has been appointed. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation or arbitration shall be tolled until disposition of the motion.

(d)Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying themselves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.

Proposed Rule 5.182, "Mediation Rules", provides the parties can agree to mediation or the court can order it on the court's own motion.  However, section 5.182(b) precludes from mediation matters concerning bond, contempt and other matters as determined in an administrative order. Likewise, Proposed Rule 5.185 covers matters excluded from arbitration. Proposed Rule 5.183 covers procedures for mediation and proposed rule 5.184, completing mediation.

The proposed rules are available here.

Assisted Living-Is It the Right Option for Assistance in Living?

My colleague and dear friend Professor Bauer, sent me the link to a recent op-ed in the New York Times,  How Not to Grow Old in America.The assisted living industry is booming, by tapping into the fantasy that we can all be self-sufficient until we die.

Assisted living seems like the solution to everyone’s worries about old age. It’s built on the dream that we can grow old while being self-reliant and live that way until we die. That all you need is a tiny bit of help. That you would never want to be warehoused in a nursing home with round-the-clock caregivers. This is a powerful concept in a country built on independence and self-reliance.

The problem is that for most of us, it’s a lie. And we are all complicit in keeping this dream alive.

The author notes that the ALF industry has a financial incentive to market their product and it's appealing to the kids of those who reside in ALFs.  The author writes, "[t]he irony of assisted living is, it’s great if you don’t need too much assistance. If you don’t, the social life, the spalike facilities, the myriad activities and the extensive menus might make assisted living the right choice. But if you have trouble walking or using the bathroom, or have dementia and sometimes wander off, assisting living facilities aren’t the answer, no matter how desperately we wish they were." Further, the author offers data that most of these residents need more care than that provided and argues in favor of regulation, using several actual cases as illustrations to support the call for regulation.

We need to let go of the ideal of being self-sufficient until death. Just as we don’t demand that our toddlers be self-reliant, Americans need to allow the reality of ourselves as dependent in our old age to percolate into our psyches and our nation’s social policies. Unless we face up to the reality of the needs of our aging population, the longevity we as a society have gained is going to be lived out miserably.