Elder Law Prof Blog

Thinking About Navigation Tools for Individuals, Families and Caregivers with Questions about Alzheimer's, Dementia or Related Disorders

Having returned this month to Pennsylvania following a wonderful experience as a visiting Fulbright Scholar at the University of Ottawa in Canada, I'm digging into the next part of my ongoing research. I have a lot to think about, having been inspired by more than 35 interviews or presentations I observed during my four months in Canada.

Law professors, especially those involved in public outreach projects, tend to attract "questions" from the public.  Most of the callers who reach out to me stop short of asking for legal advice. In fact, I've realized that most of the inquiries I receive are from people asking, "What do I do next?"  They are seeking practical guidance. 

I actually had more time than usual to listen to some of these informal inquiries while in Canada.  I'm always careful to clarify that I cannot and do not give legal advice when contacted in this manner.  At the same time, I usually learn that the questions are often more of the "how to do I find the right advice and is it even legal advice I need?" variety.  Examples:

• One call was from a husband and wife who were seeking to understand and manage the financial consequences of a senior living contract they had signed.  Both halves of the couple had been diagnosed before signing the contract with "early" stages of dementia. As it turned out, the wife had no true understanding of the contract and was refusing to "go."  This call involved multiple states, and "choice of law" questions.
• One call was from an attorney who was asked by neighbors and family members of an older person to assist an older person who seemed to be struggling financially, possibly because of third-party exploitation.  The facts were complicated, but the attorney was calling because the living situaton, though far from ideal, might be with the "consent" of the individual. 
• One call came after a Fulbright presentation I gave at the University of Ottawa where I explored the question of "Protection versus Autonomy" when facing concerns for older people -- or sometimes involving similar questions from adults who are "younger." The caller this time was concerned that clear wishes of an adult family member regarding "end of life" were being ignored by an appointed guardian.   

From my earlier work as the founder of an Elder Protection Clinic for Penn State Dickinson Law,  I recalled that we would often begin any responses to such questions from actual clients in a "step-by-step" fashion, such as:

A. Is there a threshold need for a "safer" setting for the person under consideration?  If so, what options exist?

B. Is there the potential that that impaired cognition is a reason for the person to be unable or unwilling to take self-protective actions?  If so, is there a need and an option for the person's capacity to be evaluated?

C. If a longer term plan is needed, are there "legal" components to the plan, and do those legal components benefit from medical or social supports?  If so, what accessble options exist for the person in need?  

When considering these calls while I was in Canada, I realized I was already seeing a new generation of relevant navigation tools under development in Ontario. For example, I learned about "apps" that provided navigation suggestions for individuals with heart conditions, or cancer, or Parkinson's Disease. The experts making the presentations were deeply impressive.  Many of these "path-finding" apps were directly tied to answers supported by Artificial Intelligence (AI). 

On the other hand, my observation is that most of these "apps" were "just" medical, or "just" social services in nature.  Would it be possible to design a broader-based "App" for older individuals, their families and their caregivers that can offer a wider array of possible approaches, including law-related options?  Jokingly, I ask myself, can AI help me "clone" myself and clone other people who serve as navigator tools in age-related fact patterns? Can an individual U.S. state -- Pennsylvania? -- be a leader in creating a jurisdiction-specific format?  

That's part of what I'm thinking about now, as I continue my Fulbright Fellowship research, with the inspiring examples provided in Canada, and especially with examples coming directly via my hosts at the uOttawa Center for Health Law, Policy and Ethics. Thank you, Director Vanessa Gruben and Associate Director Dina Idriss-Wheeler! 

Feel free to send me your own thoughts (probably best to do so via email as the "comment" function on this website is quirky).  

Bruyère Health and uOttawa: Imaging a Future Without Disability or Dementia?

On November 28, 2024, I was giving "thanks."  Less because it was Thanksgiving Day in the United States, but more because I was witnessing a fascinating day of health-related research reports by individuals and teams connected to Bruyère Health Research Institute in Ottawa, Canada.  Dr. Kumanan Wilson, CEO at Bruyère, made my attendance possible, and it was an inspiring day, hosted at the Canadian Museum of Nature.  Presenters were asked to frame remarks in the context of "Imagining the Future...."  And the most interesting questions asked us to "imagine the future without disabilities or Alzheimer's Disease." 

Some of the highlights of the packed program:

• Keynote speaker Dr. Claire Kendall, Associate Dean, Social Accountability, uOttawa, who describes herself as a practicing family physician as well as researcher, and who was imaging a future where local data transforms the health care of both patients and communities.  She explained the research underway to track avoidable deaths, as well as information showing inequities within and between neighborhoods in terms of access to housing, food banks, COVID-19 care, and in-person primary health care.  I was especially intrigued by the Ottawa Neighbourhood Study Project.  
• "Snapshot" Speaker Sessions, often with graduate students making the presentations.  For example, several studies are looking at what patients say about why they use hospital Emergency Rooms rather than primary health care doctors for "routine" care needs.  These interviews are helping to create "collaboration" among different community venues, including libraries and food stores, to make health care access easier, including "pop-up" health clinics.    
• Poster programs that provided me with my first introduction to "social prescribing pathways," especially for older people.  
• Learning more about technology advances, including the "Kira" project that uses virtual reality to create conversation opportunities for people with dementia.  
• Keynote speaker Dr. Andrew Frank, a neurologist and investigator with the Bruyère Memory Program and a professor at uOttawa.  Dr. Frank asked us to consider how it is that Alzheimer's disease continues to devastate individuals without us taking action. He said, "Alzheimer's Disease 'deserves' a response."  Dr. Frank outlined the latest work on biomarkers and the possibility of simple blood tests.  He explained the "gut microbiome project," enhancements for "Smart Homes," and safety adaptations for driving.  He talked about the challenges of promising drug trials for treatment (not cures) for Alzheimer's -- and he was frank about the ways in which Canada can and should play important roles in future research.

I have the feeling I might have been the only law professor in the room.  But, I also suspect I'll be inviting many of these researchers to future conferences "for" lawyers and law professors!  

Presenting to uOttawa on "The Challenges of Advancing Effective Justice for Older People"

I'm laughing as I type this post today, because it is snowing in Ottawa.  The photo here was taken while crossing my favorite bridge over the Rideau Canal on the way to the University of Ottawa, just as the snow is getting started today. 

This is the first time it has snowed while I've been in residence as a Fulbright Research Scholar at the University of Ottawa.  So. of course, it is snowing as I'm scheduled to make a live presentation today on behalf of the LIFE Research Institute and the Centre for Health Law, Policy and Ethics on campus at uOttawa.  Fortunately, there is a live-streaming option for attendees.  

To say this entire semester has been a wonderful gift to me from my hosts at Fulbright and uOttawa is an understatement.  I have many people to thank!  But, first, in case you want to see the slides I will use to keep myself on track while speaking today, here is a link.

I'm looking forward to using what I'm learning at uOttawa in my future research and publications.   So, stay tuned!  

uOttawa Report: Dynamic Programming on "Governing Reproduction" at Centre for Health Law, Policy and Ethics

One of the perks of a Fulbright Fellowship is the opportunity to attend conferences that introduce you to new topics, outside of your traditional research areas, and which stimulate new thinking even in your traditional areas.  That happened to me this week while attending a conference with the title Governing Reproduction, sponsored by the University of Ottawa's Centre for Health Law, Policy and Ethics, which is also the host for my Fellowship.   The two-day program has included a wide array of cutting edge issues such as access to abortion and contraceptives, health care for indigenous women during and following giving birth, health care funding, legislative initiatives and more.

I was very interested to hear an especially persuasive presentation on the topic of abortion law by Joanna Erdman, Professor of  Health Law and Policy at Dalhousie University.  Professor Erdman approached the topic of regulation from the perspective of health care as a public right, and the need for public spaces to access such care. She connects the need for a functioning means of abortion care in a public space to the need for security, privacy and dignity.  Intriguing. It made me think about an issue I've been watching from Ottawa play out on the evening news in nearby Buffalo, New York, where the community is facing the closure of a long-standing and respected local nursing home, triggering public outcry as this will affect 100+residents and more than 300 jobs.  The closure is triggered by inadequate public and private  funds to keep operating.  Public nursing homes are at risk of "failing" all over the United States.  

On the second day of the conference, the panel on surrogacy captured my attention. 
In Canada, federal law makes it illegal to "pay" surrogates or to pay certain intermediaries, sometimes called surrogacy agencies or brokers, for "matching" potential parents with potential surrogates.  But despite that federal law, more than a dozen surrogacy agencies are operating in Canada, sometimes appearing to avoid federal attention by taking the position they are not charging for "matching" but rather for "other" services needed by the parties to the contract during the gestational period. 

The speakers on potential regulatory issues for surrogacy arrangements included Vanessa Gruben, Professor of Law at uOttawa and also the Director of the Centre for Health Law, Policy and Ethics,  Stephanie Carsley, Professor of Law, uOttawa, and Alicia Czarnwoski, a PhD candidate at uOttawa who spoke about her survey of the operators of commercial ventures involved in facilitation of surrogacy. Isabel Côté, Canada Research Chair in Third-Party Reproduction and Family Ties from the University of Quebec, also spoke about her research into reactions of family members to the roles of surrogates.  

Of course, all of that got me thinking, especially when I heard that some 40% of surrogacy contracts in Canada may involve intended parents from outside of Canada.  I'm teaching Conflict of Laws when I return to Penn State Dickinson Law in January.  Heads up to my students!  You can expect a cross-border and federalism fact pattern between U.S and Canada in the realm of surrogacy!  What jurisdiction's law controls if a contract issue arises?  If tort issues arise? If  "fraud" exists?  

New York CCRC Residents Struggle for Fair Outcome in Bankruptcy Proceeding

As regular readers will know, I am a long-time "student" of senior living options generally, and Continuing Care Retirement Communities (CCRCs, also sometimes called Life Plan Communities) specifically.  I believe that a well-run CCRC is a beauty to behold -- and for more than 20 years I've been hearing from residents who have convinced me that CCRCs can offer a dynamic opportunity for aging in the right place, in the right ways.

At the same time, in the instances where a CCRC becomes insolvent, especially if the CCRC is in bankruptcy court, residents may rightly be frightened.  

In Port Washington, New York, one CCRC has had a particularly long and frustrating history.  The Harborside (formerly Amsterdam House Continuing Care Retirement Community, Inc.) has hoped to find a new operating group, one capable of overcoming more than 10 years of economic ups and downs, and one with the resources and experience needed to turn around the declining occupancy ratio.  My review of the pleadings makes it clear to me that many current residents have paid large entrance fees ($700k+), fees that were marketed, at least in part, as "refundable."   But the strongest bidder that was promising to honor refundable fee contracts on certain terms, Life Care Services, has pulled out of the bidding.  The bankruptcy court and the New York regulators for CCRCs (which includes the Department of Health) are now facing creditor claims from the full gamut of service industry providers, creditors who have priority over the residents. These priority creditors stand to lose more "if " the residents are promised more by a successor owner.  Lots of tough math for business interests, the regulators, and the court in this fact pattern.  But delay makes the possibility of a solution harder with every day that passes.  

At the same time, this segment of the senior living industry does not look good, when the very reason for the existence of CCRCs -- to provide a safe place for all levels of care for the residents' remaining lives -- is challenged.   Residents "bought into" CCRC living because of promises made or implied throughout the marketing phases of the CCRC-Resident relations.  But refundability of entrance fees, the availability of phased care, unique on-property services, and the simple "existence" of the community as something other than an apartment complex are at risk in this kind of a long-running history of insolvency.  Tough choices for residents, too.  

There is a big court hearing scheduled for November 20.  It will be interesting to see if some solution emerges.  

As I read about this history, I keep being reminded of other tough insolvencies for CCRCs and other forms of senior living.  Residents of CCRC rely on the actual and implied promises of financial stability of their communities.  Reliance is a hallmark element of fiduciary duty law, which is separate from and, perhaps above, contract law.  

Canadian Province Begins Permitting "Advance Requests" for Medical Assistance in Dying

In a first for Canada, the province of Quebec last year enacted a law permitting "Advance Requests" for Medical Assistance in Dying (MAID). Quebec delayed implementation of the law to permit the federal government to amend the Canadian criminal which restricts MAID to instances where the person making the request still has "capacity" immediately before the action is to be taken.  But effective on October 30, 2024, Quebec announced that despite no action at the federal level, it would begin the approval process for Advanced Requests immediately, deemed to be supportive of the wishes of people with degenerative cognitive conditions, including Alzheimer's.  

Following the announcement, the federal Minister of Health says Ottawa will not be contesting advance MAID requests in Quebec despite the conflict with federal criminal law.  CBC News reports the federal government says it "will launch a countrywide consultation on the issue next month, with a report set to be published in March 2025."

As a U.S. outsider watching this play out, the Quebec decision also appears to me to reflect growing political tensions, including those who are pressuring Prime Minister Justin Trudeau to grant their various demands, such as demands for increases in federal funds flowing to provincial projects, as the price to pay for any ongoing support for his national leadership position. 

Filial Friday: Modification of Pennsylvania's Filial Support Law Passes House Unanimously

As long-time readers of this Blog may be aware, Pennsylvania is one of the few U.S. states that still has an active "filial support" law that can sometimes be used to compel adult children to "care for and maintain or financially assist" an "indigent" parent.  23 Pa.C.S. Section 4603 (a)(1).  The Pennsylvania Legislature raised the profile of a somewhat dormant, but long-standing Colonial era statute, by moving it from Welfare laws into the Domestic Relations laws in 2005.  On October 24, 2024, the Pennsylvania House of Representatives unanimously approved changes in the law, and sent the proposed amendments on to the Pennsylvania Senate.  See Pennsylvania House Bill 2094 (Printer's No. 2678).  

A bit of background helps.  Most of the modern Pennsylvania disputes -- from approximately 1995 to present -- have been in the context of costs for care for a parent in a nursing home, where the parent has been found to be ineligible for Medicaid benefits (known as "Medical Assistance" in Pennsylvania) for long-term care.  And the most compelling cases for such a result are where the targeted adult child has misused the parent's financial resources.  For example, in one well known case, the adult daughter used a Power of Attorney to admit her mother to the nursing home, but also to gift herself with over $100,000 from her mother's bank accounts, triggering her mother's ineligibility.  Presbyterian Medical Center  v. Budd, 832 A.2d 1066 (Pa. Super Ct. 2003).

However, more controversial cases have also arisen. For example in 2012, an adult son was found liable for his mother's nursing home care, but without any allegations that he was engaged in self-dealing or deceptive behavior towards the nursing home.  See Health Care & Retirement Corp. of America v. Pittas, 46 A.3d 719 (Pa. Super. Ct. 2012).  

There have been multiple attempts to repeal Pennsylvania's filial support law, but most have stalled in a committee without any action.  The latest bill, with unanimous support in the Pennsylvania House, appears to have "legs."  The key change is that rather than an entire repeal of the law, the grounds for liability would become more narrow:  someone asserting a family member's liability for care would have to allege and prove that family member either personally took or benefited from non-exempt transfers during the last five years OR was someone who “does not cooperate with the [Human Services] department, a nursing facility, a provider or other person in the medical assistance eligibility process.”   

Democrats were the sponsors of HB 2094 in the Pennsylvania House, and the Pennsylvania Senate is currently controlled by Republicans (all of which "could" change along with much more in the next election).  But, the fact that the vote on the House bill was unanimous (with one member abstaining) suggests to me there has been a lot of hard work by both parties to get this law into a shape where they can agree.

Can Careful Structuring of a Business Impact Accountability for Quality of Patient Care in Nursing Homes?

I have long been concerned about how quality of care in nursing homes and other long-term care enterprises can be negatively impacted by ways in which daily operations are funded, staffed, supervised, and reported in certain types of enterprises, and especially within certain types of corporate "structures."  I'm not the only one worried about accountability -- and the worries are only becoming more intense the more I talk with individuals, families and their representatives. 

In November 2023, the U.S. Office of Behavioral Health, Disability, and Aging Policy issued a report focusing on several key factual findings from a study of for-profit nursing homes over a multi-year period, from 2013 to 2022:

• The report opened with background facts:  "The nursing home sector has been predominantly for-profit for decades with  approximately 69% of nursing homes owned by for-profit operators. In addition to lower occupancy rates and higher percent Medicaid financing, for-profit facilities generally have been found to have lower staffing and worse
  quality of care."
• Further, the structures of such enterprises have become more complicated, or as the report summarized: "Moreover, the role of complex ownership structures and their relationship with quality of care has become a growing policy concern. Driven by liability trends, financial pressures, and profit seeking, nursing home assets have become increasingly complex as private equity (PE) and real estate investment trust (REIT) entities have pursued investments in the sector."
• The report noted that with private investors, the likelihood of worse outcomes for patients increased:  "In our difference-in-differences analyses examining the impact of PE and REIT investment in nursing homes, we find that PE investment results in a 12% relative decline in registered nurse (RN) hours per resident day (HPRD) compared to other for-profit facilities and a 14% relative increase (i.e., worsening) in their deficiency score index. We see a similar pattern for REIT invested facilities, with a 7% relative decline in RN HPRD and a 14% relative increase in deficiency score index." 

Thus, recent research demonstrates the potential for reduced quality of care, where nursing homes are run by enterprises that seek to increase or even maximize "profit" for investors. 

During the last year, I've been following what appears to be an important case involving a variation on concerns about corporations involved in long term care. 

The case involves two levels of corporate involvement, called in this particular instance, "operating" companies and "management" companies.  In addition, while the patient was in residence at the particular nursing home in question, the ownership changed -- from one "set" of management/operating companies, to a different "set" with the  same structure.  In the old days, we would often analyze the case to see whether there were grounds to  "pierce" the corporate veil of what was, in fact, a parent/subsidiary relationship.  But, here, the management companies argue they are entirely separate enterprises with no day-to-day responsibilities for operation.  

In the case captioned Newlin et al  v. Vita Healthcare Group, et al., now going up on appeal to the Superior Court, a key issue arises from the decision of the trial court to grant post-trial relief by dismissing all claims against the two "management" companies that were found by the jury to be 65% at fault for the death of a 70 year-old patient in the for-profit nursing home.  Only the "operating" companies -- arguably under-insured and owning few assets --  were left to shoulder liability, but they were found by the jury to be only 35% at fault for the resident's injuries and death. 

Is this outcome proper as a matter of corporate law?  Is it an outcome that further incentivizes companies to create a whole new level of complexity in structures, so as to allow upstreaming of income -- the "profit" -- while insulating the "management" company from accountability for their management services?   Is this decision a proper reading of prior Pennsylvania corporate case law, especially a line of cases that includes Scampione v. Highland Park Care Center LLC, 57 A.3d 582 (PA 2012) (remanding case to determine whether both management company and nursing home operating company were liable, requiring review of evidence about the resident-entity relationships).  

There is more to this story -- and more to come here.

Visiting in Canada as a 2024-25 Fulbright Fellow at University of Ottawa

I'm catching up on my blogging life after an especially busy summer, which included a horseback riding adventure with a dear friend  from New Mexico, Deborah Walker, along the Ring of Kerry in County Killarney, Ireland.  We enjoyed every moment!

Now I'm in Canada as a visiting 2024-25 Research Chair in Health Law, Policy and Ethics at the University of Ottawa's Center for Health Law.  This is my second career opportunity to "visit away" under the auspices of a Fulbright Fellowship program and it is wonderful to experience new places, new ideas, and new people.

My start on the Fulbright was a little delayed -- because of a late summer horseback riding accident (although, thankfully that accident did NOT take place in Ireland), as I managed to break my arm and bruise a few ribs when my horse fell unexpectedly,  sending us both to the ground from a canter. 

I must admit -- after a lifetime of riding both horses and bicycles for long distances in new places with a few tumbles along the way  -- you would think I "knew" better than to jump at the chance to ride one more "new" horse who had arrived in the barn just a few days before my original planned departure for Canada.  Whoops!  The ER, a  cast, a bit of surgery and lots of physical therapy and I'm back on a good path.  This is my first time blogging with both hands on the keys since the tumble.

I've been fascinated by the University of Ottawa programming I'm witnessing.  I chose Canada -- and specifically Ottawa -- because I wanted to take time to experience the nation's capital, and take a close look at Canada's  health care program and approaches to aging issues.  So far, I've already sat in on presentations on a range of health-related subjects, including a book launch on September 25 of Pandemics, Public Health, and the Regulation of Borders. 

The multi-author approach provided important contrasts on the question of what does it mean to keep vulnerable populations safe in the face of a global health care crisis, while still being "good national citizens" of the world.  Colleen Flood, recent Director of UOttawa's Center for Health Law and now the Dean of  Queen's University Faculty of Law and a co-editor of the Routledge Press (open access) book, led off the discussion that centered on COVID-19, by comparing New Zealand's locked border approach with the attempts of both Canada and the United States to limit travel (and thereby reduce transmission of disease) while still permitting open borders to facilitate economic transactions, including movement of needed supplies.  I was especially interested in the presentation of Kumanan Wilson, a physician and scientific leader with the Bruyère Research Institute, who provided a brief history of the science of "vaccine passports," including the need for stable, reliable sites for digital information.  (Did you lose track of your paper vaccine card(s))?    

Stay tuned!  More reports to come!

New Article From Professor Richard Kaplan

Read anything written by Professor Kaplan. He's the best. Here is the info he provided about his most recent article:

Analyzing the New Planning Opportunities in SECURE 2.0 for Retirement Plan Participants , 42 Elder L.J. 93-114 (2024). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4924711

Abstract: This article examines and analyzes six major changes enacted by the SECURE 2.0 Act of 2022 pertaining to current plan participants in retirement plans. Those changes relate to: (1) increased contribution limits for 60-year-old employees, (2) longevity annuities, (3) charitable gift annuities, (4) long-term care insurance, (5) unused funds in section 529 college savings plans, and (6) emergency withdrawals. These provisions vary considerably in their connection to the principal purpose of employer-provided retirement plans – namely, to finance the retirement of affected employees. But they represent Congressional efforts to address some of the deficiencies in the present tax-subsidized matrix of employer-provided retirement savings plans and may appeal to affected plan participants. In this regard, they continue the pattern of recent years of using pension plans to accommodate an ever-widening array of social initiatives that are related only tangentially, if at all, to providing income when plan participants retire.

 

Thank you Professor Kaplan for letting us know about this latest article!

Nursing Home Staffing and Finances and the Industry's Response to "Historic" CMS Mandates

One of the longest running issues in the operation of nursing homes is adequacy of staffing to provide safe care.  The staffing issues intensified with the COVID pandemic but have not truly eased over the last two years, especially as the constant search for qualified workers is up against immigration restrictions, wage competition in health care, lack of reality-based public funding support, and the "drift" away from personal services in almost all employment sectors.  

Nonetheless, the current Administration and  CMS are not accepting "crisis" arguments as an automatic excuse for inadequate staffing.  In April 2024, the Centers for Medicare and Medicaid Services (CMS) issued final rules for "Minimum Staffing Standards for Long-Term Care Facilities" and "Medicaid Institutional Payments Transparency Reporting."  An April 24, 2024 CMS "Fact Sheet" summarizes the mandates which include phased implementation dates:

Central to this final rule are new comprehensive minimum nurse staffing requirements, which aim to significantly reduce the risk of residents receiving unsafe and low-quality care within LTC facilities. CMS is finalizing a total nurse staffing standard of 3.48 hours per resident day (HPRD), which must include at least 0.55 HPRD of direct registered nurse (RN) care and 2.45 HPRD of direct nurse aide care.  . . . 

 

CMS is also finalizing enhanced facility assessment requirements and a requirement to have an RN onsite 24 hours a day, seven days a week, to provide skilled nursing care. . . . 

 

The Medicaid Institutional Payment Transparency Reporting provisions, finalized in this rule, are designed to promote public transparency related to the percentage of Medicaid payments for services in nursing facilities and ICFs/IID that is spent on compensation to direct care workers and support staff. . . . 

 

Highlights from the Medicaid Institutional Payment Transparency Reporting provisions include: 

• New institutional payment reporting requirements requiring states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and ICFs/IID that is spent on compensation for direct care workers (such as nursing and therapy staff) and support staff (such as housekeepers and drivers providing transportation for residents). These requirements apply regardless of whether a state’s LTSS delivery system is fee-for-service or managed care. . . . 
• Support for quality care and worker safety by excluding costs of travel, training, and personal protective equipment (PPE) from the calculation of the percent of Medicaid payments going to compensation. . . . 
• Promoting the public availability of Medicaid institutional payment information, by requiring that both states and CMS make the institutional payment information reported by states available on public-facing websites."

I turned to the latest issue (June 2024) of McKnights Long-Term Care News to see industry-friendly viewpoints.  The public website often includes select articles from the subscription-based News.  I was especially struck by a new Opinion piece by the Executive Editor of this industry-focused media source.  Under the headline for the article that seems still to be behind a paywall, "A Dangerous Game of Chicken for Nursing Homes," James Berklan begins:

The federal government's first-ever nursing home staffing mandate can be a very dangerous thing  Just maybe not for the reason that many have been portraying. 

 

The administration has stuck its neck out to do what no other had done before it.

 

At the same time, providers are sticking their necks out by doubling down on their poor-mouthing platform.  The one-size-fits-all, unfunded mandate will put countless operators out of business, is the party line. . . .

 

Will enough skilled nursing operators actually start to go belly-up or leave the business and not get replaced by some other operator?

 

In brief, if the final rule's main staffing provisions go fully into effect in a few years and there's not enough loss of skilled nursing capacity, this turns from being a dangerous game of chicken into more like a reputation-killing case of crying wolf.  

 

So, now the intrigue builds.  What happens if the free-market forces continue, as they are wont to do in this country, and investors keep acquiring facilities?

 

Given the billions of dollars currently in play in US long-term care, it would be foolish to think there won't be certain players still looking to make a buck on this business. . . . . 

 

It seems that the government, or at least the current administration (hint) is fully in the consumer-worker camp that believes providers are simply hoarding their reserves, and are able to save their own hides.

 

Clearly, the feds believe they have the upper hand in calling operators' bluff."

 

In my Elder Law Prof Blog post from earlier this week, focusing on private equity investment in nursing homes, I quoted the title from a newspaper's op-ed, using the phrase "tipping point."  It does seem that the feds and the industry agree that somehow the issue of adequate staffing -- with qualified workers -- who expect appropriate pay -- is indeed a key "tipping point" for care-connected senior living.

Pittsburgh-Post Gazette Editorial: "A Tipping Point" for Private Equity Firms in Nursing Homes

Recently, the Pittsburgh Post-Gazette's online publication carried an editorial on a very hot topic, the impact of private equity investment in nursing homes.  The opening paragraph sets the stage for the argument:

The long-term mismanagement of nursing homes by private equity firms has reached a tipping point, resulting in over 20 bankruptcy filings in local elder care facilities in just a few weeks. It’s only the beginning of turmoil for nursing homes run by private equity, and the terrible results should be a lesson guiding future oversight.

As the article explains, while there are a host of bankruptcies in the Pittsburg area, the problem is not "just" a local issue.  Further, the editorial tracks a corporate strategy designed to separate the operational side of the business from the more lucrative "management fee" side of the business, observing: 

Private equity firms extract money from nursing homes in a process called a “sale-leaseback,” or selling the land out from under the facilities for lump payments. Nursing homes are suddenly forced to pay rent or “management fees” to occupy facilities they once owned. This is the same process, in a much less sensitive business, that resulted in the bankruptcy of the Red Lobster restaurant chain.

I once tried to explain to a financial advisor that I wanted nothing to do with investments by private equity into for-profit health care, and especially into nursing home care, as I personally could see no easy way for profit-seeking to create better quality of care.  Did they listen?  It is hard to know.  But, as the editorial also points out, new federal Medicare/Medicaid rules now seek to compel facilities to "disclose their ownership." 

The editorial concludes with especially strong wording, expressing hope that disclosure rules will help to "shift incentives against vulture capitalists, and toward operators that put their patients, not profits, first."  

For more read,  Pittsburgh Post Gazette Editorial, "Private Equity and Nursing Homes are a Match Made in Hell." 

 

Report on 2024 Annual Sonya L. Patterson Memorial Elder Abuse Symposium in Oklahoma

Recently, I participated in a well-organized CLE event, offered annually as a memorial to a great attorney who passed away too soon.  The Annual Sonya Patterson Memorial Elder Abuse Symposium  is hosted by Legal Aid Services in Oklahoma.  By all accounts, Sonya Patterson, who died in an accident while just a few years into her already notable career as an attorney, is a proper subject of this tribute, as she was deeply concerned with advocacy for individuals who may be victims of abuse, exploitation or neglect.                             

Cutting edge topics were a big part of the summer 2024 program.  For example, one new concern is about "dirty deeds," where fraudsters record deed transfers, often targeting properties without any mortgages, and thus often targeting the equity earned by older owners.  We heard from hard-working staff members in the Oklahoma County Clerk's office in Oklahoma City, where the county has created a registry/notification system for owners as a way to receive an "alert" about potential fraud. In one instance, the fraudster was arrested while in the act, at the County Clerk's office!  We also heard about the very real need for pro bono legal assistance on this topic, as many older owners may not have ready savings or cash to pay private attorneys to catch and cure the fraud.  

Here was the full lineup for 2024 Symposium::

• Introduction to Elder Abuse Law: Cassandra Bobbitt & Richard Goralewicz
• Ageism:  Richard Goralewicz
• Step by Step, Slowly it Can Happen: Examining Dynamics of Conflicts of Interest for Lawyers in Representation of Older Persons and Families
• Oklahoma Legislative Responses to Elder Abuse: Oklahoma Representative Nicole Miller
• Cleaning Up "Dirty Deeds," by representatives of a County's Deed Recording Office and Attorney Christopher Jones 
• Recognizing and Responding to Elder Abuse in Indian Country: Peggy Jo Archer, Judith Kozlowski, Margaret Carson
• Undue Influence and Its Ethical Implications: David M. Postic, Adjunct Professor at University of Oklahoma College of Law

At the invitation of Rick Goralewicz, senior law project attorney with Legal Aid Services in Oklahoma, I used the visually interesting tale of a real-life Irish Pub to discuss very real consequences of failing to recognize conflicts of interest for attorneys attempting to represent both the older adult and other family members on planning transactions.  My special thanks to Rick and Attorney Ana Reynolds for inviting me again this year!  

 

A Broadway Play about "Breaking and Keeping the Family Contract"?

At this time of year, when the Tony Awards are about to be announced, I often wish that I'd seen particular productions, as some will inevitably disappear from the stages soon after the awards are announced.  I realize that is happening again this year, as I read a New York Times piece about the Tony-nominated "Mother Play."  From the article, an intriguing hint of what I'm missing:  

In the decades-spanning “Mother Play,” set in the Washington area where [playwright Paula Vogel] grew up, Carl (Jim Parsons, Tony-nominated for his performance) is Phyllis’s doted-on darling boy. He is also the tenacious champion of his worshipful younger sister, Martha (Celia Keenan-Bolger, likewise), a fictionalized version of Vogel. And he is the child cast out when Phyllis breaks what Vogel described as “a contract of parenting and family,” which is “that you take care of your family when they’re dying, regardless.”

So, does that contract, whether negotiated or not, exist.  Did it exist as a social construct?  Does it still exist as implied obligation?  The play is reportedly about "forgiveness," or as one of the actresses offers, "Age has such an impact on the way that we're able to view our parents and their shortcomings."  

I'm sorry to miss the production, which is scheduled to close on Sunday, especially as it has a great cast, including Jessica Lange, real age 75 (how is that possible....?).  But I'll hope for awards on Sunday night, and the possibility the production might last a bit longer on Broadway.  

Meet Crystal West Edwards, a Leader in Elder Law, Special Needs and Estate Planning, who is Meeting the Needs for a Diverse Range of Clients

One of the nicest aspects of getting older as an educator is witnessing how your former students are adapting and thriving in a changing world.  It seems like every week I hear from a former student who wants to share experiences.   Bring it on!  Such calls, emails and texts put a big smile on my face!  

Very recently, I had the opportunity to do a formal interview of a former student.  Crystal West Edwards is a 2008 Dickinson Law graduate.  In law school, Crystal quickly identified the intersection of health law, family law and planning issues as her "place."   And I'm smiling -- and sometimes  joining her in laughter -- throughout her account of daily life as a lawyer.  For more on Crystal's remarkable and successful path in advocacy for older adults, special needs clients, and families with estate and planning concerns, including clients of color, join us for the recording of our interview.  The interview -- available on YouTube --  is part of a new series on Profiles in Leadership, hosted by Dickinson Law Professor Daryl Lim, Associate Dean for Research and Innovation.  

Here is a direct link to cut & paste:

https://youtu.be/DMgMPFB6zPQ

 

Is the Ability to Retire Becoming a Luxury?

The Tampa Bay Times ran an editorial about the fact that some folks will not be  able to afford to retire. Retirement is a growing luxury in the US  offers that, for various reasons, older workers are returning to the work force after retirement, or not retiring at all.  The editorial discusses a recent survey from AARP, New AARP Survey: 1 in 5 Americans Ages 50+ Have No Retirement Savings and Over Half Worry They Will Not Have Enough to Last in Retirement "shows that "20% of adults ages 50+ have no retirement savings, and more than half (61%) are worried they will not have enough money to support them in retirement. The findings also reveal a decline in overall sense of financial security among men, 42% of whom describe their financial situation as “fair” or “poor,” up from 34% in the beginning of 2022. However, roughly 40% of men who are regularly saving for retirement believe they are saving enough, compared to just 30% of women."

Keep in mind, the editorial cautions, there is a difference between older  Americans who continue to work because they enjoy it compared to those who keep working because they can't afford to retire.  Thee article also discusses the different savings behaviors when the employer offers a plan to help workers save for retirement. 

Is the Ability to Retire Becoming a Luxury?

The Tampa Bay Times ran an editorial about the fact that some folks will not be  able to afford to retire. Retirement is a growing luxury in the US  offers that, for various reasons, older workers are returning to the work force after retirement, or not retiring at all.  The editorial discusses a recent survey from AARP, New AARP Survey: 1 in 5 Americans Ages 50+ Have No Retirement Savings and Over Half Worry They Will Not Have Enough to Last in Retirement "shows that "20% of adults ages 50+ have no retirement savings, and more than half (61%) are worried they will not have enough money to support them in retirement. The findings also reveal a decline in overall sense of financial security among men, 42% of whom describe their financial situation as “fair” or “poor,” up from 34% in the beginning of 2022. However, roughly 40% of men who are regularly saving for retirement believe they are saving enough, compared to just 30% of women."

Keep in mind, the editorial cautions, there is a difference between older  Americans who continue to work because they enjoy it compared to those who keep working because they can't afford to retire.  Thee article also discusses the different savings behaviors when the employer offers a plan to help workers save for retirement. 

Is the Ability to Retire Becoming a Luxury?

The Tampa Bay Times ran an editorial about the fact that some folks will not be  able to afford to retire. Retirement is a growing luxury in the US  offers that, for various reasons, older workers are returning to the work force after retirement, or not retiring at all.  The editorial discusses a recent survey from AARP, New AARP Survey: 1 in 5 Americans Ages 50+ Have No Retirement Savings and Over Half Worry They Will Not Have Enough to Last in Retirement "shows that "20% of adults ages 50+ have no retirement savings, and more than half (61%) are worried they will not have enough money to support them in retirement. The findings also reveal a decline in overall sense of financial security among men, 42% of whom describe their financial situation as “fair” or “poor,” up from 34% in the beginning of 2022. However, roughly 40% of men who are regularly saving for retirement believe they are saving enough, compared to just 30% of women."

Keep in mind, the editorial cautions, there is a difference between older  Americans who continue to work because they enjoy it compared to those who keep working because they can't afford to retire.  Thee article also discusses the different savings behaviors when the employer offers a plan to help workers save for retirement. 

Baby Boomer Asset Transfers Doesn't Mean Millennials are financially set

The New York Times ran an article, A Wealth Shift That Could Leave Some Younger Americans Behind,  The article discusses a significant wealth transfer that will occur as boomers reach the end of their lives, but notes some boomers and families do not fit that narrative.

Baby boomers have trillions of dollars in wealth that some economists predict will have a significant impact on their millennial-aged children when they inherit the cash, homes, stock portfolios and other assets their elders hold. But experts say that the narrative of millennials’ paying off debts and wielding greater spending power over the next two to three decades is complex — and leaves out families without enough assets to pass along.

In addition, there seems to be a lack of sharing of financial information between the generations which can lead to misconceptions, among other things. And there is always a chance that the boomer parent may need to pay for long term care for a length of time.  Yes there is going to be a significant wealth transfer as the boomers reach the end of their lives. But it is not going to be across the board; instead it will depend on the circumstances.

Combining Education and Community Service for Pennsylvania Law Students: "Wills for Heroes"

On a recent Saturday in April, I had the privilege of spending the day -- almost 9 hours, in fact -- with first responders and veterans, and sometimes their children, plus attorneys, notaries, and law students at an event in Central Pennsylvania.  The students, lawyers and notaries were all volunteering their time to prepare wills and other key estate planning documents for community area residents at the Cumberland County Good Hope Fire Station, in Mechanicsburg, Pennsylvania.   The Wills for Heroes event had a full slate of 50 spots for clients, and the seats seemed full all day.  In fact the last two sets of documents were witnessed about 4:30 in the afternoon.  Shown here are two Penn State Dickinson Law students, Alaina Kuzmitsky (R) and Devon Lacy (L), working under the direction of a notary and local attorney.

The Wills for Heroes program is organized in Pennsylvania under the auspices of the Pennsylvania Bar Association's  Young Lawyers Division, with the support from individual county bar groups. Paul D. Edgar, Esq., who is the incoming President of the Cumberland County Bar Association, and who currently spends his weekdays in the state Attorney General's office, provided a great training session and set everyone up in the large community room of the very busy Good Hope Fire Station. There were 10 well-spaced tables devoted to interactions between teams of lawyers and law students, for discussion about wills, powers of attorneys and advance health care directives. Separate tables offered witnesses and notaries for final documents.  Law students from both Penn State Dickinson School of Law and Widener Law Commonwealth were fully engaged in the drafting and review process, a great opportunity for combining their hands-on education with public service.   

In addition to Devon and Alaina, the Dickinson Law contingent included several students who were completing an "experiential component" of a Spring semester Elder Law class (Jonathan Biedler, Caitlin Godsey, Talmage Pearce, Devon Lacy, and Joe O'Donnell), three first-year law students (Aidan Levinson, Kristen Ramillano, and Maedot M. Teweldemedhin), two additional upper division law students (Hannah Pasco and Payton Pittman), plus LLM student Naby Bangoura.  Also, one of the practicing attorneys, Fred Gibson, is a recent graduate of Penn State Dickinson Law, who identified his professional interest as potentially including estate planning and elder law while still in school -- and is now helping other law students do the same.    

LLM Student Naby Bangoura wrote to me after the event to express his thoughts on what he described as "key" components to the event, including the use of software that permits customization of the documents.  It was an opportunity for him to recognize how in the United States, the Rules of Professional Conduct governing attorneys apply "even" during free legal services.  He offered a comparative, international perspective, observing: 

"It is truly extraordinary that the Pennsylvania Bar has brought together different professionals, including attorneys, notaries, and students, to assist individuals in drafting their wills at no cost. I have rarely seen this type of synergy and collaboration between professionals from different backgrounds in jurisdictions such as France or West Africa. Although I have attended some pro bono services in France during Covid, which concerned the impact of force majeure on business operations and some remedial measures they could explore, this kind of in-person collaboration and experimental learning is extremely valuable. I wish such initiatives could be experimented with in other parts of the world."

Finally, the firefighters and emergency personnel working at the Station welcomed everyone to their Station with generous offerings of food and coffee throughout the day, and an opportunity to take photos with the fire trucks at the end of the day.  We appreciate your service to the community and it was a pleasure to talk with so many of you.