Elder Law Prof Blog

What Happens When Living Isn't Easy in Senior Living?

 

More than 300  lawyers and other professionals attended the recent Pennsylvania Elder Law Institute (July 25-26, 2023) held in Harrisburg. It was good to be back among long-time friends as well as new colleagues -- our first time together in "real time" since 2019.  The programming began with a tribute to Jeffrey A Marshall, recently retired as a Williamsport, Pennsylvania attorney, who has been a guiding figure for the development of speciaized knowledge and skills for lawyers committed to helping older persons and their family members with practical concerns about care, financing, capacity, agency and more. 

This year the program once again began with a comprehensive "Year in Review" that focuses on recent and proposed legislation or rulemaking, demographic trends, and case law.  Deep appreciation to Marielle Hazen and Rebecca Hobbs for all of their hard work on this key presentation.  Important "keynote"speakers included David Lipschutz, Associate Director for the Center for Medicare Advocacy and legendary Tennessee Elder Law attorney Timothy Takacs.  

I had the pleasure of teaming with Katie Dang and A.V. Powell for a 90-minute session about "What Happens When Living Isn't Easy in Senior Living?" Central topics included concerns about contract rights and obligations in nursing homes, plus we made a deep dive into factors that can affect financial soundness of continuing care retirement communities (also known as CCRCs or life plan communities). 

Katie reported on successful efforts to avoid a one-sided contract of adhesion and help a family negotiate fair payment terms for a parent's admission to a nursing home.  She demonstrated key language to strike or modify to reduce the potential for unintended consequences of signing such agreements.

We also reported on a recent Ohio appellate case that rejected a nursing home's attempt to argue a family members was contractually obiligated to personally pay for care.

 

A.V. brought to the conversation his dry wit and 40+ years of  experience as a professional actuary.  He has analyzed the fiinancial viability of hundreds of CCRCs around the country.  He noted that Pennsylvania is the birthplace of the CCRC concept and he emphasized the significance of current residents who seek accountabiity by making requests to governing boards for timely evaluations of financial conditions.  A.V. also provided us as lawyers with ways to guide clients who are prospective residents in identifying how an enterprise can provide long-range reassurances about sound finances.   Trust is essential for a model that offers, on the one hand, a holistic approach to purpose-buldt housing, great food (and nutrition), activity and, if needed, nursing or dementia care, but, on the other hand  also expects people to pay thousands of upfront dollars in the form of admission fees plus significant monthly maintenance fees.    

Photos used here are by my summer research assistant, the great Noah Yeagley.  Thank you, Noah!  One of the fun aspects of this conference is being able to introduce current students to practitoners and getting to catch up with so many of my former Penn State Dickinson Law students, including Jared Childers, the incoming Chair of the Pennsylvania Bar's Elder Law Section, and who recently became an adjunct professor at Dickinson Law.  Congratuatlions, Jared!  

Updates on Aid-in-Dying Legislation

I noted a couple of developments  concerning medical aid-in-dying laws that I wanted to share.

First, Vermont became the second state to eliminate the reseidency requirement for aid-in-dying.  This change was pursuant to litigation by a plaintiff in Connecticutt. See Vermont Removes Residency Requirement for Medically Assisted Deaths  and   see VT HB 190,  https://legislature.vermont.gov/bill/status/2024/H.190. The language of the bill amending the statute is available here.

And on the other side of the issue of the right to assistance-in-dying, a group in California has challenged their law. Kaiser Family Foundation (KFF) Health News reported last month that Disability Rights Groups Sue to Overturn California’s Physician-Assisted Death Law. The article notes the platinffs' argument that "that recent changes make it too easy for people with terminal diseases whose deaths aren’t imminent to kill themselves with drugs prescribed by a doctor" and that this law and its process "'steers people with terminal disabilities away from necessary mental health care, medical care, and disability supports, and towards death by suicide under the guise of ‘mercy’ and ‘dignity’ in dying,' the suit argues. The terminal disease required for assistance is, by definition, a disability under the Americans with Disabilities Act...."  A story about the litigation is available on NPR here.

Age of Elected Officials Once Again in the News

Perhaps the age of elected officials is never really out of the news with  the question being whether a candidate is too old or too young. Maybe age is garnering more attention because of the upcoming presidential election and the ages of candidates.  But it's not just presidential candidates.  The age of some Senators has been drawing attention. Why Dianne Feinstein, Like Many Before Her, Refuses to Let Go; Opinion,The U.S. Senate, it’s senior living made permanent. Join today! (satire); and for a different take, an article  forwarded  by Professor Naomi Cahn, 80 is different in 2023 than in 1776 – but even back then, a grizzled Franklin led alongside a young Hamilton.

Google "how to think about President Biden's age" and you will get a # of results which run the gamut from articles to opinion pieces.  Is it really about age? Or is it about the ability to do the job? This New York Times article,   How Much Do Voters Really Care About Biden’s Age?  reviews polls and research and is a pretty interesting read.   Age is definitely a factor, but so is party affiliation, among other factors, the article notes. 

I suspect each of us will reach our own conclusions about the ideal age of candidates, whether in local, state, or national races. And it's only a matter of time before the question regarding the age of Supreme Court Justices is in the headlines again.   

Aging Issues in the News

To me, it seems recently there are more articles  in major publications about aging than in the past. For example, yesterday in the Washington Post, there were three: 

‘Granny flats’ play surprising role in easing California’s housing woes

Seniors are flooding homeless shelters that can’t care for them; 

and 

an opinion esssay, My neighbor lived to be 109. This is what I learned from him.

The "Granny Flats" article notes that this popular name for accesssory dwelling units is someo thing of a misnomer today as the focus of the article is on the popularity of using  ADUs to help with the housing crisis:

The numbers tell the tale: More than 23,000 ADU permits were issued in California last year, compared with fewer than 5,000 in 2017 — which was around when ADU permitting began to take off thanks to legislative and regulatory changes in the state. The state now requires faster permit approval by localities, and establishes that cities must allow ADUs of at least 850 square feet — though many are much bigger. A number of other bills are being debated in Sacramento, including one by Assemblymember Phil Ting (D) that would allow property owners to sell their ADUs separately from their main houses.

The second article, also on housing, is more troubling, noting the number of elders who are unhoused.

Nearly a quarter of a million people 55 or older are estimated by the government to have been homeless in the United States during at least part of 2019, the most recent reliable federal count available. They represent a particularly vulnerable segment of the 70 million Americans born after World War II known as the baby boom generation, the youngest of whom turn 59 this year.

Advocates for homeless people in many big cities say they have seen a spike in the number of elderly homeless, who have unique health and housing needs. Some communities, including Phoenix and Orange County in California, are racing to come up with novel solutions, including establishing senior shelters and hiring specially trained staff.

...

“It’s just a catastrophe. This is the fastest-growing group of people who are homeless,” said Margot Kushel, a professor of medicine and a vulnerable populations researcherat the University of California at San Francisco.

The opinion piece is based on a forthcoming book about the author's 109 year old neighbor.  ("This essay was adapted from “The Book of Charlie: Wisdom from the Remarkable American Life of a 109-Year-Old Man,” by David Von Drehle.")

And these articles are in addition to articles about the debt ceiling negotiations.  Off to read more.

Arizona Feature: "Arizona Seniors At Risk of Harm"

Appearing on the front page of the Sunday edition of the Arizona Republic (5.21.23),  the first paragraphs of an extended feature article point to the potential for harm to residents and the consequences of staff shortages or inattention at Arizona facilicities caring for residents with dementia. Two women in their 90s  are residents of an elegantly appointed assisted living facility-- but as the article begins they are covered in blood -- and the investigation of what happened there is hampered by the inability of anyone to give clear explanations. 

The feature, based on the newspaper's review of "thousands of pages of police and state regulatory reports," offers multiple reasons for such injuries in "senior living" facilities, including a lack of clear reporting rules and the absence of investigation by state agencies, especially for facilities licsenced for "assisted living" as opposed to "nursing home" care.  From the  feature:

In memory care units, anything can become a weapon -- toilet plungers, shoehorns, electric razors, TV remotes, metal trash grabbers and walking canes. Hundreds of vulnerable seniors, particularly those with dementia, contend with violence at the end of their lives in the very places that promise to keep them safe. 

 

Shortages of staff-- brought on by companies looking to maximize profits or stave off financial losses -- lead to more harm. Assisted living facilities can keep resident clashes underwraps [in Arizona] because regulartors don't make facilities report incidents to their state licensing agency.  Federally regulated nursing homes have to report but little attention is paid to the problem.

 

The Arizona Republic combed through thousands of pages of policce and state regulatory reports to find more than 200 clashes at senior living facilities from mid-2019 to mid-2022. Residents punched, hit, pushed, kicked, poked scratched, bit, elbowed or spat on other residents or employees.

Experts consulted by the Arizona Republic noted that one "key [to reducing problems] is tailoring a [resident's] care plan to each resident's needs, equipped with activities that bring their lives a sense of purpose."  Further, "[a]ssisted living facilities commonly get in trouble for having inadequate, delayed or out-of-date plans for residents that outline their need or for failing to follow those plans."

The article cautions that if a problem is not tracked, "it doesn't exist":

The Arizona Department of Health Services licenses facilities and is responsible for investigating complaints but assisted living centers don't have to report nonfatal injuries to the agency.  

 

That's not normal.  Most states require facilities to report to their licensing agency when residents get hurt, according to The Republic's review of state laws.

The feature suggests that "Arizona lawmakers and regulators have prioritized the needs of assisted living and nursing home companies over their residents," comparizing Arizona to  "[a]t least 17 states [that] require assisted living facilities to get inspected about once a year, with a few even requiring two inspections per year. " 

For the full Arizona Republic feature published in its print version on May 21, 2023, look for  "Arizona seniors at risk of harm: Facilities experiencing staff shortage, residents with dementia enable violence," by reporters Caitlin McGlade, Melina Walling and Sahana Jayaraman. The extended Sunday feature appears to follow several shorter articles available online in May from the same reporting team. 

Ohio Appellate Court Confirms that Agent Not "Personally Liable" for Costs of Nursing Home Care

In one of the earliest articles I wrote on familiy member liability under nursing home contracts, I cautioned that federal law prohibits nursing homes from requiring "guarantees" of payment by family members.  Any family member who is asked to sign "on behalf" of a loved one should carefully consider the role he or she is undertaking, especially if the only role acceptable  and affordable for that family member is "agent."  See "The Responsible Thing to Do About 'Responsible Party' Provisions in Nursing Home Agreements," published in 2004 in the Unversity of Michigan Journal of Law Reform.   

On May 1, 2023, an appellate court in Ohio cited this article when concluding that in the case before it, the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care.  The daughter appears to have properly cooperated or assisted in the original Medicaid application.  Further, the daughter gave authority to the nursing home to debit the bank account where her mother's SS checks were deposited each month, in order to pay itself the "patient pay portion" of the monthly allocation for costs of care when a patient has low income but is otherwise eligible for Medicaid.  Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000, a resource limit that can trigger disruption of  Medicaid benefits.  There was still another party that could be faulted for what appears to have been an unplanned "excess resource" situation.  The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminaating Medicaid.   See National Church Residences First Community Village v. Kessler, 2023 WL 3162188  (Ohio Ct. App. 2023).  

Bottom line?  Family members or others attempting to help an incapacitated person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligability for Medicaid.  Further, clear, direct communications between the agent, the facility and state agencies are important when seeking to facilitate prompt, proper payments.  

Overwhelmed family members should not be scapegoats, even (especially?) when overwhelmed state agencies and facility billing offices are themselves missing opportunities to keep benefit payments flowing properly.  

Undocumented Workers in the Caregiving World

Los Angeles Times journalist Steve Lopez has been writing recently on the financial costs of long-term care, whether in the home or a "senior living" setting.  It is part of his series of  "Golden State" columns on California's aging population.   Today, however, he has reversed the lens, and talks about the impact of the need for care on low-wage workers.  He writes: 

I’ve been in homes where the caregivers are U.S. citizens with decent wages and benefits, and I’ve been in homes where the workers are undocumented and paid less than the minimum wage  ($16.04  an hour in the city of Los Angeles)  in cash. It’s a wink-and-nod system, much like farm labor, in which cheap labor is prized over any other consideration.

 

“It’s very much a legacy of slavery and a history in this country of not valuing the work done by … people of color,” said attorney Yvonne Medrano, who heads the employee rights program at Bet Tzedek Legal Services.

 

Several weeks ago I reached out to the the Pilipino Workers Center, a Los Angeles nonprofit that has been educating domestic workers on their rights and leading a fight against a system in which labor laws are often ignored and workers — many of them old enough to be receiving elder care themselves — are cheated and exploited.

Aquilina Soriano Versoza, the center’s director, said research indicates a majority of clients appreciate the care they get and would be willing to pay more for it, but many can’t afford to.

For  a more complete picture, read They Take Care of Aging Adults, Live in Cramped Quarters, and Make Less than MInimum Wage from the Los Angeles Times.

San Diego Expands its Pilot Program for Alzheimer's Response

As described in The San Diego Union-Tribune, San Diego's Alzheimer' Response pilot program, launched in 2018  for the "East County," is a success, helping the public in better addressing people coping with Alzheiemer's Disease or other dementias.  The Alzheimer's Response Team (or ART) now covers the full San Diego region, with help from $1.5 milliion in funding and a staff of  10.5 full time employees.   Originally the program collaborated with an outside nonprofit organization, but "the county now provides its dementia training in-house."

Concerned family members have the option of asking for ART services, often as a way to avoid having problematic episodes escalate.  The article, published online on 3/27/2023 explains: 

ART focuses on two aspects of dementia care: crisis response and crisis prevention. To better respond to emergency calls related to dementia, law enforcement agents, first responders, social workers and mental health clinicians receive training on how neurodegenerative diseases like Alzheimer’s impact someone’s behavior.

 

That training helps first responders better recognize the symptoms of dementia during emergency calls. They can then call in the ART specialists to work with the person in distress and provide in-home services for clients living with dementia and their family caregivers.

 

Eugenia Welch — president and CEO for Alzheimer’s San Diego, which helped develop the initial programming — said the first responder training and specialized ART staff are key to the program’s success. Interacting with someone diagnosed with dementia, she added, is different than working with people who don’t have neurodegenerative disorders and “takes a unique skill.”

 

“I think by having the specialized team going out, they’re able to be more in tune to the services that are available for people living at home with dementia and able to more quickly connect people with those services to get them the support they need,” Welch said.

 

The ART staff may follow clients to provide support in order to prevent new crises, and to connect the families with local dementia care resources.  According to the article, while "Adult Protective Services Cases" are usually closed in a month, ART support services can continue for six months or longer.  "Staff check in with the client and their family regularly until ths situation is stablized before closing the case."

 

Family members or other concerned people can call 911 in the event of a serious situation developing and should "let disptachers know somoene in the home has either been diagnosed with dementia or is supsected to be living with the condition undiagnosed."  The article says that services can also be requested through the countys's Adult Protect Services Call number directly, rather than through 911.  

Did You Miss These Two Items?

A dear friend of mine sent me this short video on how to make a SNF resident's room more easily identifiable to them: https://www.tiktok.com/@designsecretsss/video/7184175944666516779

Also, the latest edition of the Journal of Elder Policy has been published and is available here. The Journal is "an interdiscplinary journal about old age and policy", and prior issues can be accessed through the landing page.

Borchard Foundation Center on Law & Aging Academic Research Grants Application Now Open

Forwarded from the Director Mary Jane Ciccarello

 

The Borchard Foundation Center on Law & Aging

Invites Applications for

 The 2023-2025 Borchard Fellowships in Law & Aging

 

Applications due April 3, 2023

 

 

Fellowship Information

The Borchard Fellowship in Law & Aging offers the opportunity to carry out a substantial project related to law and aging in partnership with a host agency. Two two-year fellowships are available to law school graduates interested in, and perhaps already in the early stages of pursuing, an academic and/or professional career in law and aging.

The fellowship is $58,000 a year for two years and is intended as a full-time position only. During the fellowship period, the Center’s director and former fellows are available to help fellows with the further development of their knowledge, skills, and contacts. Fellows may also receive from the Center financial support to attend appropriate professional education program opportunities. A fellow is expected to provide the Center with monthly activities reports. Fellows may live and work where they choose in the United States. Fellows must be either U.S. citizens or legally resident in the U.S.

A legal services or other non-profit organization involved in law and aging must serve as the fellow’s host agency and supervise a fellow’s activities and projects. The fellow’s host agency is responsible for providing employee benefits, employer’s FICA payment, administrative support, workspace, computer, telephone, and email access.

The two-year fellowship period starts typically on July 1 for those already admitted to the Bar and from not later than September 1 for those who must sit for the Bar exam after law school graduation.

Fellows participate in conference calls and other planned activities with other current and former fellows to encourage networking. Former fellows who successfully complete the fellowship period may also participate in the Center’s Former Fellows Grant Program.

Examples of some activities and projects by Borchard Fellows:

• Working with an established legal services program to enable vulnerable, isolated, low-income seniors to age-in-place by addressing their unmet legal needs;

• Providing holistic services to older clients facing consumer debt and foreclosure-related concerns;

• Providing direct legal representation and holistic services to older tenants in “clutter cases”;

• Implementation of a courthouse project to help elderly pro se tenants achieve long-term housing stabilization through the interdisciplinary use of legal representation and social services, allowing more elderly tenants to “age in place” at home; 

• Development of mobile clinics to help Chinese-speaking elders improve their access to public benefits and health care;

• Development of a medical-legal partnership for low-income older adults;

• Development of educational outreach efforts and legal services for older LGBTQ+ adults;

• Development of legal services and informational materials to caregivers working on behalf of beneficiaries with cognitive impairment;

• Development of a non-profit senior law resource center providing direct legal services and public education;

• Development of an interdisciplinary elder law clinical program at a major public university law school;

• Development of a mediation component for a legal services program elder law hotline;

• Development of an interdisciplinary project for graduate students in law, medicine, and health advocacy to foster understanding and collaboration between professions;

• Development of training materials and statewide trainings for

lawyers, judges and other court personnel, and social service providers on new comprehensive state guardianship laws;

• Development of legal services programs for older clients in consumer law and small claims matters, end-of-life matters, and in protection from financial and elder abuse for older clients whose first language is other than English;

• Development of free legal clinics for older clients in suburban areas;

• Development, administration, and interpretation of statewide senior legal hotline outcomes study;

• Increasing access to legal representation for older adults in immigration detention facilities;

• Organizing and/or attending national conferences on law and aging issues;
• Writing and publication of law review articles on law and aging issues;

• Writing and publication of state specific, consumer oriented handbooks on legal issues affecting older persons;

• Analysis of Medicare policies;

• Analysis of Medicaid Home and Community Based Services with a focus on improving racial equity;

• Analysis of SSI non-disability appeals; and

• Teaching elder law and related courses at law schools where fellows reside.

 

Application Process

Applications are due on April 3, 2023. Applicants must submit a completed online application including an information form, an explanation of the applicant’s planned activities and projects, a statement about the applicant’s interest in law and aging, a current curriculum vitae, a law school transcript, a letter of support from the proposed supervisor, and two other letters of support.

All fellowship application information and the required online application are available between March 1, 2023, and April 3, 2023, at http://www.borchardcla.org/fellowship-program.

For further information, contact Mary Jane Ciccarello, Director, at [email protected].

New Article from Professor Kaplan on IRAs

I am remiss in not telling you sooner that Professor Richard  Kaplan has a new article. Anything he publishes is a must-read in my book. Here's the info

The Declining Appeal of Inherited Retirement Accounts is now in print: 42 Va. Tax Rev. 267-85 (2023).

SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4323136

Abstract: As retirement accounts proliferate and grow in value, American retirees are increasingly leaving substantial balances in these accounts to their adult children, siblings, and other relatives. Until recently, these new owners were able to withdraw funds from these tax-favored accounts over their lifetimes as their personal circumstances dictated. But legislation enacted in late 2019 and regulations issued in February 2022 have sharply limited the flexibility that non-spousal beneficiaries now have regarding these assets. This article examines those changes, analyzes their impact on the new owners of inherited retirement accounts, and considers what planning strategies are now appropriate.

Thanks Professor Kaplan!

Medicare and Social Security Projections-Not Unexpected?

The news from the Congressional Budget Office underscores the reality that the SSA and Medicare Trustees have been pointing out for a while now.  According to an article yesterday in The Hill, CBO warns of sharp uptick in Social Security, Medicare spending,

Federal spending on Social Security and Medicare is projected to rise dramatically over the next decade, far outpacing revenues and the economy on the whole while putting new pressure on Congress to address accelerated threats of insolvency, according to new estimates from the Congressional Budget Office (CBO). 

The increase is driven by a variety of factors, including Social Security’s new cost-of-living adjustment, the rising cost of medical services under Medicare and greater participation rates in both programs, as the last of the baby boomers become eligible for retirement benefits. 

Further, in Social Security set to run short of funds one year earlier than expected the director of the CBO explains

Social Security funds are set to start running a shortfall in 2032, one year earlier than previously expected, the director of the Congressional Budget Office (CBO) said on Tuesday.

“The Social Security solvency date — the exhaustion date for the trust fund — is now within the budget window,” CBO Director Phillip Swagel said, referring to the 10-year period covered by the agency’s annual report.

If the Social Security funds become insolvent and there is no change to current laws, beneficiaries would see a more than 20 percent reduction in their benefits, Swagel added. 

This is the CBO’s second update to the Social Security insolvency date in the last two months, after it adjusted its projection down to 2033 in mid-December.

And finally, in Axios today, Medicare politics are on a crash course with reality

By the numbers: Medicare spending is expected to more than double by 2033 — climbing to $1.6 trillion, or over 4% of the entire U.S. economy, according to an estimate released yesterday by the Congressional Budget Office.

[T]he program's trustees have said the fund that pays for Medicare's hospital coverage will soon reach a dangerous tipping point — paying out more than it takes in. On that trajectory, it eventually wouldn't be able to pay for the coverage it's supposed to provide.

Want to read the full CBO report? It's here.  

Misquoting Bette Davis, "Fasten your seatbelts. It's going to be a bumpy ride."

Limited Nursing Home Beds Also Impacting Hospital Availability

On December 7, NPR had a short segment during Morning Edition describing the impact of lack of staffing -- and therefore lack of "beds" --  in nursing homes and rehabilitation care facilities, which in turn means hospitals are stuck keeping the patients. Further, Medicaid often won't pay for hospital care for individuals who "only" need nursing home care. 

Listen to the 3-minute segment that uses hospitals in Vermont as the focus:  Limited Nursing Home Beds Force Hospitals to Keep Patients Longer.

The story hints at several subtle issues, including Medicaid funding priorities, especially as Medicaid involves joint federal/state funding, and how health care handles "inability to pay" by residents.   This last semester I've taught a stand alone course on Nonprofit Organizations Law and students are often surprised to learn that the single largest -- and highest income -- segment of the nonprofit world is health care, especially hospital-based health care.   Students ask how a "charity" accounts for earnings and losses -- and we discuss the fact that no organization, nonprofit or for profit, can afford to operate very long without adequate revenues to stay solvent.    The NPR story reflects a theme that my course often raises -- what does it mean to be "charitable"?  

USA's Fastest-Growing Demographic Group? Consider the Implications of People Age 50+ Who Live Alone

The New York Times Sunday edition includes a feature article about a trend, "more older Americans living by themselves than ever before."  

Using graphs, interviews and research results, the article makes a clear argument, that "'while many people in their 50s and 60s thrive living solo, research is unequivocal that people aging alone experience worse physical and mental health outcomes and shorter life spans." 

Plus, the article implies that evidence that shows a growing share of older adults (age 55 plus) do not have children, means there is a public policy concern "about how elder care will be managed in the coming decades." 

For me, this article crystalizes two legal concepts I write about frequently:  "filial support" laws that can be used to compel adult children to care for or maintain their elders, and "continuing care retirement communities," that permit people with sufficient -- make that significantly sufficient -- financial resources to plan for how their care needs may be handled in a planned community.  

Law professors can probably use the article to stimulate waves of student projects about personal and collective responsibilities in American societies and beyond.  

For more, see  "As Gen X and Boomers Age, They Confront Living Alone," by Dana Goldstein and Robert Gebeloff. 

 

Loss of the Ability to Evaluate Risk vs "Winning the Sweepstakes"

When I was a child, my grandfather had an ongoing relationship with Readers' Digest.  Not just their magazine or their condensed books, but with the company itself. He was always convinced he had won their latest sweepstakes and his big-dollar prize was just around the corner.  It was a bit of a family legend.  

Recently an older friend, who had celebrated a 90th birthday a few months back, called to ask for help in filling out forms for the Publishers Clearing House sweepstakes.  Over the years my friend had purchased various items from PCH, including a set of solar lights that never worked properly.   The odds of actually "winning" the PCH sweepstakes are astronomically high.  My friend thought buying something would increase the odds of winning no matter how often I explained over the years that was not true.  Sometimes new "stuff" would appear in the mail, along with a corresponding bill for the "order."  It was hard to know whether my friend had actually ordered the items.

This time, my friend was thrilled to explain the long-awaited victory was almost here -- as the latest mailing "guaranteed" the check would be arriving by mail and all that was needed was timely confirmation by return mail of a willingness to accept the prize.  Two envelopes were provided to help in "claiming" the victory.  

I walked patiently through the colorful documents with my friend, pointing out all my examples of clever language.   I showed my friend a copy of a case, Harris v.  Publishers Clearing House, an unofficially reported  federal decision from 2016, that described another person who also thought he had won for the exact same reasons as my friend. The prize never came. He was suing -- without the benefit of an attorney --  for breach of contract, fraud, and alleged violations of Deceptive Mail Prevention and Enforcement Act, 39 U.S.C. Section 2001 et seq.  But the judge ruled against him, dismissing the case with prejudice while explaining the language in the letters "merely informed the plaintiff that he had a chance to win. . . . "  

My friend seemed to understand what I was saying.  My friend asked my opinion -- "what should we do?"  I suggested we tear up the letters and throw them in the trash.  My friend put the documents -- untorn -- in the waste can.  We talked about the fact that continuing to participate with this company was wasting money, and was also an example of "feeding the troll," encouraging the company to keep sending those "too-good-to-be-true" letters to other people.   We  ended our discussion with a good hug.

The next morning I stopped by to drop off newspapers and a fresh donut.  As I waited for my friend, I saw the top of two "official" envelopes addressed to Publishers Clearing House peeking out of the top of the home's mail box for pick up -- with fresh stamps.   I couldn't help but sigh.  

Here is a link to a science-based discussion about early assessment of cognitive impairment, and the importance of histories provided by a reliable informant or care partner for diagnostic assessment.  Victimization in scams is one of several behavioral examples listed in the article that can point to changes in cognition, associated with the loss of the ability to evaluate risk or odds of winning. 

Isn't it sad that it might be easier to diagnose cognitive impairment than to get a ruling finding deceptive trade practices?  

Within 10 Minutes, Three Friends Sent Me Links to the Same NYT Commentary on Aging

I'm going to try not to take this personally, but I realized that within the space of a few minutes three friends had emailed me links to the same New York Times opinion piece  

The amusing commentary begins:

There’s a brutal moment in youth when you go from looking up to your elders to looking somewhat down on them. Or at least seeing them with a more jaundiced eye. Maybe it happens at a party. You glance around the room and realize the gentleman you once saw as distinguished has cheerfully dipped a half-eaten chicken wing into a bowl of hummus. You see what one might politely refer to as a “not young” woman waving her arms around with a little too much gusto on the dance floor. And it hits you: They don’t realize that they’re old.

So how do you know when it’s happening to you?

For the full commentary -- that you can read while smiling, however rueful your smile might be, see Wait, Who Did you Say is Middle-Aged?  

My thanks to all of our good friends who help in shaping this Blog!  

 

 

 

Justice Department Expands Strike Force to Protect Older Americans from Fraud

The U.S. Justice Department issued a press release yesterday, announcing the expansion of its Transnational Elder Fraud Strike Force.  The Strike Force was organized in 2019, involving the Justice Department's Consumer Protection Bureau,  U.S. Attorneys Offices, the FBI, Homeland Security, and -- I was interested to see -- the United States Postal Inspection Service

I've actually worked with the Postal Inspector on an elder fraud case.   A woman in her 90s was mailing an unusually fat envelope and asked a friend to give her a ride to a local branch of the post office.  The friend, knowing the woman was quite frail when walking unassisted, offered to get the postage, or to accompany her, but the older woman, who the friend thought seemed unsure of herself, declined.  The friend thought about this, was alerted by what struck her as unusual behavior, and called the woman's daughter and explained what had just  happened. 

The daughter had dismissed a home caregiver recently after learning the caregiver was asking her mother for -- and receiving --  two  or more "pay checks" per week, as well as asking for additional cash that seemed to disappear in mysterious ways.  The daughter went to the post office with a copy of a certified Power of Attorney, granted to her by her mother several years before she was diagnosed with multiple conditions, including cognitive issues, following a stroke.  In fact the reason the caregiver had been hired was precisely because the mother was vulnerable and sometimes confused. 

The Post Office at first seemed to be reluctant to take action, but the daughter was able to describe the envelope and also to provide the name of the former employee who had already been fully paid for his work, and had signed a receipt to that effect. The Post Office's worker agreed to search, but when the daughter departed, it seemed unlikely any action would be taken.  That is, it seemed unlikely until the next day, when a representative of the Postal Inspector set up an appointment.  Having identified and been given the daughter/agent's permission to open the envelope, the federal authorities found several hundred dollars in the envelope that was, indeed, addressed to the former worker.  The officers interviewed the mother and then went to see the suspect, who claimed it was merely an additional paycheck that was "owed."  He  claimed the mother was fully supportive of giving him cash, but he was unable to explain the receipt he'd signed, the burner phones he had used to call the woman, nor the many "payments" he'd received in the last 60 days, payments that the daughter had since documented as more than tripling his agreed wage rate during that period. 

I'm the daughter; my 90+ mother was the person defrauded.  (She has since passed away, so I feel more able to tell this story.)  I learned the Postal Service already understood such a fact pattern very well.  Even at that time, several years ago, the official investigating the facts told us that similar transactions happened all too often.  It is good to see, with this latest press release, that the U.S. Justice Department is coordinating authorities on enhanced fraud prevention and recovery efforts in support of elder justice.  

My thanks to Associate Dean for Academic Affairs Amy Gaudion at Penn State Dickinson Law, who shared the Justice Department notice with me, and whose own research focuses on national security and privacy issues.  

Widener Univ. Commonwealth Law School's Clinical Students to Serve as Monitors in Pennsylvania Guardianship Program

Mary Catherine Scott, Director of the Central Pennsylvania Law Clinic at Widener University Commonwealth Campus, has recently partnered with Dauphin County Orphans' Court in Harrisburg, Pennsylvania to expand her clinical students' opportunities for service. Law students will now have roles as monitors in guardianship cases, seeking to maximize the interests of protected persons.  The Pro Bono Guardianship Monitoring Program was begun in central Pennsylvania by the Honorable Todd Hoover, and is now overseen by Dauphin County Court of Common Pleas Judge Jeffrey Engle, involving as many as 400 active cases.  The monitor program is another component of the Pennsylvania courts' enhanced protections for older persons and other persons found to be in need of certain assistance.  Pennsylvania also has a state-wide Guardianship Tracking System. 

This is another example of expanding services to older adults in Pennsylvania, an outgrowth of the Elder Justice Consortium, supported by representatives of all nine law schools in Pennsylvania.    

MA Plans May Not Cover All Medicare-Allowed Days for SNF Stay?

Kaiser Health News just released this story, Nursing Home Surprise: Advantage Plans May Shorten Stays to Less Time Than Medicare Covers.

Health care providers, nursing home representatives, and advocates for residents say Medicare Advantage plans are increasingly ending members’ coverage for nursing home and rehabilitation services before patients are healthy enough to go home.

Half of the nearly 65 million people with Medicare are enrolled in the private health plans called Medicare Advantage, an alternative to the traditional government program. The plans must cover — at a minimum — the same benefits as traditional Medicare, including up to 100 days of skilled nursing home care every year.

But the private plans have leeway when deciding how much nursing home care a patient needs.

One expert interviewed for the story  noted that "[a]s Medicare Advantage enrollment has spiked in recent years, ... disagreements between insurers and nursing home medical teams have increased. In addition, [the expert] said, insurers have hired companies, such as Tennessee-based naviHealth, that use data about other patients to help predict how much care an individual needs in a skilled nursing facility based on her health condition. Those calculations can conflict with what medical teams recommend...."

This is an important issue. Read this story.

Another Article on the Impact of Family Caregiving

On several occassions we've pointed out issues surrounding the need for caregiving and families stepping up to fill the role.  Add this article from the New York Times to the library of articles on the topic. The Quiet Cost of Family Caregiving focuses on the impact on the individuals providing care, especially if they are working. For example, "Caregivers who are employed often reduce their work hours or leave the workplace altogether, research has shown. Several recent studies, however, reveal the impact of these decisions in more detail, not only on working caregivers but on employers and the general economy." The article looks at the data on those who reduce hours or leave the workforce and the gender differences on those leaving the work force.  This is an important article-read it!