Tuesday, November 12, 2019
As the semester winds down, I have a few more posts from my students giving us updates on current events. Here's a happy and inspiring story from Shelby Reinwald:
“Love a Senior Day”
On Saturday, October 26, Jacksonville, Florida hosted its first-ever “Love a Senior Day.” This “not-so-typical” senior expo event’s primary purpose was to bring together people of all ages to recognize and celebrate older Americans and their care providers. Guest speakers at the event, including Bill Thomas, a renowned geriatrician and co-founder of the Eden Alternative and Green House Project, hoped to inform attendees of three major issues faced by the senior population: health, wealth, and dignity.
Thomas sought to pose questions to attendees with the goal of getting them to think about ways to communicate with loved ones while aging and to consider various financial management strategies to help with long-term care planning. Further, Thomas hoped to destigmatize the concept of aging as a “decline,” and to instead get more people to realize aging is just another phase of growth.
Attendees were also provided valuable information on local politics, health care and Medicare.
What made this event especially unique, though, was that music, yoga, and games were offered alongside the informative presentations in an effort to get people to “live [their] lives and forget age.”
I believe events like this will help pave the way in combating ageism and to foster relationships between people of all ages. “Love a Senior Day” is a fantastic way to gather people and educate them on ways to better care for themselves and loved ones while aging – which is something we all do – in one united space.
Aging should be celebrated, so keep an eye out for future “Love a Senior” events that you could attend at http://loveasenior.com/love-a-senior-day-events/.
The Jacksonville Times-Union article on “Love a Senior Day”: https://www.jacksonville.com/news/20191023/jacksonvilles-first-love-senior-day-is-not-your-typical-senior-expo
For information on the Eden Alternative, visit: https://www.edenalt.org/
For information on the Green House Project, visit: https://www.thegreenhouseproject.org/about/visionmission
Maddison Cacciatore writes about the important of exercise in cases of cognitive decline:
The New York Times recently published Steps to Prevent Dementia May Mean Taking Actual Steps, which discusses the preventative and mitigating effects exercise can have on cognitive decline diseases for people of a more advanced age. The article also rebuts the common presumption that brain-training apps are a reliable way to prevent or slow the development of cognitive decline. I think this a topic SNF’s need to be aware of in order to provide better care for their residents. I realize that in this risk averse society, brain training apps may be more appealing to SNF’s, as they have a far lower ability to cause physical harm to residents, however, does this it really a lower risk of harm in the long run. Reducing or avoiding necessary exercise and replacing this with a lacking alternative the SNFs are setting their residents up for a faster decline in health.
The above-referenced article outlines a few of the reasons why exercise is beneficial in regard to cognitive deterioration, one of which is common sense but not often mentioned in this discussion. Exercise brings people together in a social environment, which in turn provides them with social interaction and a need to use their brain. This is so important. SNF’s need to realize the importance of incorporating exercise and social interaction into residents’ care plans, when applicable. Any movement is better than nothing.
The New York Times included some very persuasive information regarding the prevalence of dementia in the US:
“A recent study in Health Services Research found that the additional cost of dementia to Medicare is nearly $16,000 per person over five years. About 14 percent of people in the United States over the age of 71 have some form of dementia. Alzheimer’s disease is the leading cause, afflicting 5.7 million people.”
As someone who has personally seen the toll these diseases cause on a family, as well as the positive effects of exercise on the slowing of its progression, this topic is of great importance to me and think it should be on every SNF’s radar in the future. One of my grandfathers is 92 and has very advanced Alzheimer’s. Our family opted to have a family member live with/provide him care. Pat, the caretaker, forces my Grandpa to walk around the yard a few times throughout the day. Grandpa is always more coherent after he walks, and it is especially noticeable what days he does not get some sort of exercise. We all know and agree that if he were in a SNF, not being forced to exercise on a daily basis, he would not be here today. Additionally, my other grandfather, in my opinion, has prevented (or at least put off) his development of this disease. All three of his younger siblings developed and passed away from Alzheimer’s. Because my grandfather is terrified of the disease, he is constantly exercising and playing the brain development apps. He is 77 and exercises for at least an hour every day. I am not an expert by any means, but it is my opinion that he has not been diagnosed due to this constant exercise.
The prevalence of cognitive decline is a very important problem, needing more attention. They are a great emotional and financial burden on a community, and if there is a way to prevent and/or mitigate their progression, SNFs and families need to take note. It may be more work, and not the most financially appealing option, but the end result is much more important.
Monday, November 11, 2019
The National Center on Law & Elder Rights has announced the release of the Elder Justice Toolkit. According to the website
The Elder Justice Toolkit is a resource created by the National Center on Law & Elder Rights. It contains practical information on civil legal remedies, practice tips, and sample pleadings for attorneys seeking protection and redress for their clients who have experienced elder abuse. Multiple states’ perspectives are considered and used as examples, but the Toolkit is designed for national use.
Some of the resources contained in the Elder Justice Toolkit have come from legal assistance organizations and have been re-formatted or re-purposed by NCLER...
This resource will continue to grow and have materials added to it over time. To receive NCLER communications and updates on resources, sign up here.
To find additional resources on elder justice topics, please read our Elder Justice Compendium.
A collection of our elder abuse webcast trainings can be found here.
Each topic includes a summary, an issue brief and step-by-step guide and a video. Here's an example of an issue brief on mandatory reporting for elder abuse cases.
Check it out and bookmark the webpage!
Sunday, November 10, 2019
ProPublica ran an in-depth story about a case of mistaken identity and the removal of life support.The Wrong Goodbye covers the story of removal of life-support from a patient, after which the family learns that the patient was not in fact their relative. The must-read story offers examples of how and why mis-identification of patients may occur. After writing about the facts and both families, the story turns to the litigation.
“The defendants negligently misinformed the plaintiff that her brother ... was admitted to the hospital in an unconscious state. The defendants negligently misinformed the plaintiff that her brother had died on July 29, 2018. As a result of the defendant’s misinformation and negligent conduct the plaintiff has suffered severe emotional harm and injuries.”
[The hospital] ... did not deny the mix-up, but argued it was not liable for any damages because no member of the Williams family ... had actually been a patient at the hospital. The hospital asked a judge to dismiss the case.
[The] lawsuit was reported in a daily story inside the New York Post on Jan. 27, 2019. It did not report the identity of the person taken off life support, but the story was reproduced on a slew of news websites.
[The widow] found the article on her Facebook feed. It had been aggregated on a website called Dearly.com. She eventually realized the story involved [her husband's] death, that he was the unidentified dead man in the article. Months into her efforts to figure out the details of her husband’s death, she saw in [the attorney], who’d been quoted in the article, someone who might help. Maybe [the attorney] would represent her, too.
She met [the attorney] in his Brooklyn office. He was quite certain she had a case. He was less certain he could represent both families. He arranged for her to call [a member of the other family] to see if everyone was comfortable with the idea....
When the conversation was over, [the attorney] was representing both families.
The article ponders the oversight from the law and various state and federal agencies and the impact this has had on the families. In the epilogue to the article, we are updated
More than a year after her husband’s death [the decedent's spouse] feels deeply frustrated, and increasingly doubtful that her husband’s death will ever be fully explained or that anyone will ever be held accountable. The police have all but stopped speaking to her. [The hospital] seems to have been cleared by the Health Department.
[The widow's] remaining chance at what she wants — a full explanation and punishment if warranted — appears to rest with ... the lawyer....
This summer, a judge in the Bronx rejected [the hospital's] motion to dismiss [the] lawsuit. [The attorney] is eager to start collecting more material in discovery.
. . ..
Read this article, realizing the story has not yet ended. It provides an important teaching point for us with our students.
Everyone agrees that we need a stronger national commitment to "retirement security" in America. But what, exactly does that mean? This topic will be a central focus for discussion during a Public Forum hosted at Penn State's Dickinson Law on Tuesday, November 12, 2019. The keynote speaker is former Maryland Lt. Governor Kathleen Kennedy Townsend, who is currently the Director of Retirement Security at the Economic Policy Institute, as well as serving as a research professor at Georgetown University.
Along those very lines, last week I read a news article about the latest stalemate at the federal level on specific legislation that could promote better retirement savings. The measure in question is H.R. 1994, the "Setting Every Community Up for Retirement Enhancement" Act -- and of course that name was chosen to reinforce the goal of SECURE futures. The bill passed the House with strong, bipartisan backing in May 2019, but is now mired in the Senate. Excerpts from The Hill describe the roadblocks to passage:
GOP senators on Thursday attempted to bring a House-passed retirement savings bill to the Senate floor with votes on a limited number of amendments, but the effort was rejected by Democrats.
The Republican effort and Democrats' rejection highlighted how, despite widespread bipartisan support and backing from industry groups, it is still unclear when the retirement bill will be enacted.
The House in May in a nearly unanimous vote approved the bill, known as the SECURE Act. The bill includes a host of provisions aimed at making it easier for businesses to offer retirement plans and for people to save for retirement. It also reverses a provision in the 2017 Republican tax-cut law that inadvertently raised taxes on military survivor benefits paid to children....
Sen. Patty Murray (D-Wash.) objected to the Republican request, saying that Senate Democrats want the chamber to pass the House-passed bill as-is, without any amendments.
“We have a few Republican senators who want to sidetrack it with last-minute amendments, including proposals that are not in the interest of working families and will kill any chance this bill has of becoming law,” she said.
Murray asked Toomey to modify his request in order to allow the bill to pass as-is, but Toomey said he wouldn’t modify his request.
For another perspective, see "What is the SECURE Act? How Could It Affect Your Future?"
Friday, November 8, 2019
Maybe it's just me, but there seems to be a lot of items in the news of late about elder abuse. Here are some new tools to add to your toolbox in the fight against elder abuse. The National Center on Elder Abuse (NCEA) and National Asian Pacific Center on Aging (NAPCA) have released 3 new fact sheets:
- Six Ways to Care for Yourself When Caring for Someone with Dementia
- NAPCA: Emotional Abuse and
- NAPCA: Neglect
All of the fact sheets are available in several languages and are added to an extensive library of fact sheets.
Thursday, November 7, 2019
The Federal Trade Commission (FTC) recently sent a report to Congress, Protecting Older Consumers 2018-2019: A Report of the Federal Trade Commission. Here is the introduction to the 40 page report:
As the nation’s primary consumer protection agency, the Federal Trade Commission (“FTC” or “Commission”) has a broad mandate to protect consumers from unfair, deceptive, or fraudulent practices in the marketplace.1 It does this by, among other things, filing law enforcement actions to stop unlawful practices and, when possible, returning money to consumers. The FTC also protects the public through education and outreach on consumer protection issues. Through research and collaboration with federal, state, international, and private sector partners, the FTC strategically targets its efforts to achieve the maximum benefits for consumers, including older adults. Protecting older consumers in the marketplace is one of the FTC’s top priorities. Unfortunately, in numerous FTC cases, older adults have been targeted or disproportionately affected by fraud. For example, the FTC has brought numerous enforcement actions in federal court to stop deceptive technical support schemes that affected older consumers.As the population of older adults grows,the FTC’s aggressive efforts to bring law enforcement action against scams that affect them, as well as provide useful consumer advice, become increasingly important.
The FTC submits this second annual report to the Committees on the Judiciary of the United States Senate and the United States House of Representatives to fulfill the reporting requirements of Section 101(c)(2) of the Elder Abuse Prevention and Prosecution Act of 2017. The law requires the FTC Chairman to file a report listing the FTC’s enforcement actions “over the preceding year in each case in which not less than one victim was an elder or that involved a financial scheme or scam that was either targeted directly toward or largely affected elders.” Given the large number of consumers affected in FTC actions, this list includes every administrative and federal district court action filed in the one-year period. Appendix A to this report lists all of the FTC’s enforcement actions over the preceding year. In addition to the list, the FTC files this report to provide detail on the agency’s efforts to protect older consumers, including its research and strategic initiatives, its law enforcement actions that noted an impact on older adults, and its targeted consumer education and outreach.
The full report is available here.
Wednesday, November 6, 2019
Student George Thurlow found this story about athletes helping elders with their utilities:
The Jacksonville Jaguars NFL team and linebacker Myles Jack recently made headlines by helping to keep utilities on for several elderly Jacksonville residents in October 2019. While this donation made a difference in helping 31 elderly customers to keep their electricity on, it also speaks to a larger societal issue—there are many older Americans (ages 65 and above) that face financial hardship.
According to a 2008 study from the Center for American Progress, 22.4% of older Americans have family incomes that would be considered poor—within 150% of the poverty line (which in 2019 is $12,490 for a single person or $16,910 for a couple). This measure also likely underestimates the elderly poverty rate as it fails to consider thing like high medical costs (which nearly would double the figure for New York state). These individuals struggle the most with paying their utility bills. While programs such as Florida’s Low-Income Home Energy Assistance Program (LIHEAP) and Emergency Home Energy Assistance for the Elderly Program (EHEAP) can help older Americans meet this need, they require substantial documentation to apply and leave out some older Americans struggling but with income above 150% of the poverty line. Also, older Americans are more likely to live in older homes with insufficient insulation and not have newer, more efficient heating and cooling systems, only increasing their costs. The end result of this is that a lot of older Americans are struggling balancing their utility bills with other necessities.
While this is a good dead by the Jaguars and Myles Jack, how do we help other older Americans facing this same struggle? Do we increase Social Security and Medicare benefits? Do we encourage more economical housing arrangements that would have lower utility bills? These are serious discussions that we will need to have and the need to have these conversations will not disappear anytime soon with rising medical costs, rising life expectancies, and a growing number of people nearing retirement age with insufficient savings.
Jenna Kyle writes about elders in one country who are committing crimes in order to be jailed for housing:
Jail as a Warehouse for the Japanese Elderly
It is commonly discussed how people in today’s North American society have a lack of respect for the elderly. Often, you hear how in other cultures, such as those in Asia, respect for the elderly still exists. However, this article illustrates that a lack of respect and resources for the elderly is a global problem.
Seniors in Japan are intentionally committing petty crimes as they have no money to afford food and shelter. They commit these crimes knowing how seriously Japanese courts treat petty theft, expecting to receive jail sentences; and therefore, food and shelter. In the past, children traditionally looked after their parents in Japan. But, recently in provinces that lack economic opportunities, younger people have moved away, leaving the elderly to look after themselves. It is interesting to consider whether a similar epidemic could occur in the United States. Personally, I don’t believe it is as likely. In Japan, the elderly are committing petty non-violent crimes, as they are known to come with high sentences. In the US, petty crimes, such as shoplifting are not typically given such high sentences. Therefore, American seniors would need to commit more extreme crimes to be sentenced to a jail term, crimes I feel elderly people are less likely to commit.
Further, Japan is improving their prisons, putting in handrails and special toilets and implementing special classes for older offenders. Historically, American prisons aren’t as elder friendly, making them a less desirable living situation for impoverished American elders.
This article also raises another important issue. A model in Japan has been costed to build an industrial complex retirement village where people would forfeit half their pension to get free food, free board and healthcare, etc. It has been determined that it would cost significantly less for the government to do this than to continue to put money into their jails to make them adequate for their elderly inmates. I believe this illustrates how the government and society tends to deal with issues involving the elderly in a reactive manner instead of a proactive manner. If the government and society were able to take more proactive measures in caring and aiding the elderly, it would not only benefit the government (less money spent) but would also greatly improve the quality of life for their elderly citizens.
Erin Morse writes a very personal story about looking for an ALF for a family member.
Finding an Assisted Living Facility For Your Loved One
Around this time last year, my family and I were looking into assisted living facilities for my grandma that had been diagnosed with dementia years prior. Thankfully we had time to look into these options, something many people don’t have on their side as many are being discharged from the hospital and can no longer go home.
We began looking into our options for assisted living facilities because it was becoming too hard on my grandpa to be her caregiver and unfortunately in-home care was not our best option because my grandpa, the devoted husband that he is, refused to give up on my grandma and thought he didn’t need the help.
Several things played a factor in what I looked at when assessing the different facilities. It was important to me that the facility allowed visitors whenever, with no advance notice. If a facility makes you give notice and/or only allow visitors in a certain time frame, it’s a huge red flag.
The quality of food was also top of my list. I didn’t want my loved one eating cafeteria slop. I wanted the food to be edible, fruits and vegetables that actually looked like fruits and vegetables, and a healthy well-rounded diet. I wanted the food to be made fresh daily and not come from a freezer.
I also factored into my decision what the residents were doing in the daytime when we visited. Were they sitting around watching tv? Were they just sitting in their wheelchairs and sleeping? Did they seem to never leave their room? Or were they active and participating in different types of activities?
There is obviously an extensive list of things to consider when choosing a facility for your loved one which can be found with a simple google search, one of those lists being located at the following link: https://www.aarp.org/caregiving/basics/info-2017/assisted-living-options.html. It is also helpful to make a list of things that would be important to you if you were about to enter into a facility.
Which brings me to present day, where my family and I are now potentially looking at facilities for my grandpa, who was just diagnosed with Alzheimer’s. Things that I have now added to my list are to thoroughly read the facilities contract - paying close attention to arbitration clauses and their ability to terminate the contract; observe the facility’s turnover – which I recommend looking at their open job positions and see how often new job postings are being posted; and even learn about who is on their payroll – how many registered nurses, do they have a visiting doctor, do they have a local pharmacy or a pharmacy that delivers, etc.
Tuesday, November 5, 2019
There are two upcoming webinars you won't want to miss. First, register for the How to Talk About Elder Abuse webinar on November 13 at 1 eastern. According to the announcement
Over the past few years, the FrameWorks Institute worked with the National Center on Elder Abuse to create a communication strategy that demonstrates how we can restructure our communities to put elder abuse on the public agenda, generate a sense of collective efficacy on the issue, and boost support for systemic solutions to prevent and address it. During this webinar, participants will learn about the NCEA’s Reframing Elder Abuse project; review a new evidence-based public communication strategy on elder abuse; and begin learning how to apply it in their communication practices.
To register, click here.
The next webinar, on December 3, at 2 eastern, covers New Research on Elder Abuse Among American Indian and Alaska Native Populations,
The webinar which is hosted by the National Center on Elder Abuse at the Keck School of Medicine of USC, will cover the following:
Many tribal communities are experiencing a silent epidemic of abuse of older adults. Limited research on elder abuse has suggested higher rates of abuse among tribal elders, yet little is known about promising strategies that can be implemented to prevent or manage cases of abuse. This webinar will provide an overview of elder abuse in Indian Country, including recent research identifying new national-level prevalence rates and predictors of abuse among American Indian and Alaska Native elders. Rates of various types of elder abuse for Native Americans-- almost double that of overall findings from original study findings -- will be shared. The unique, complex context that intersects to shape abuse correlates for tribal elders such as history of trauma, social support, and emotional problems will be discussed. Findings from a recent national needs assessment focused on screening and management of elder abuse in tribal health settings that included tribal health care providers, elder advocates, Title VI staff, and tribal Adult Protection Services will also be shared. Presenters will identify promising practices and strategies identified in the needs assessment, as well as a series of recommendations that can be implemented in local tribal communities to help combat elder abuse.
To register, click here.
Monday, November 4, 2019
Social Security recently posted on the SSA Blog a quick explanation of the basics of Medicare. Medicare, A Simple Explanation first explains original Medicare which "includes Medicare Part A (Hospital Insurance) and Part B (Medical Insurance). If you want drug coverage, you can join a separate Part D plan. To help pay your out-of-pocket costs in Original Medicare (like your deductible and 20% coinsurance), you can also shop for and buy supplemental coverage." The blog then explains Part C (Medicare Advantage):
Medicare Advantage is an “all in one” alternative to Original Medicare. These “bundled” plans include Part A, Part B, and usually Part D. Part C plans may have lower out-of-pocket costs than Original Medicare. They also may offer extra benefits that Original Medicare doesn’t cover — like vision, hearing, dental, and more.
If you can’t afford to pay your Medicare premiums and other medical costs, you may be able to get help from your state. States offer programs for people eligible for or entitled to Medicare who have low income. Some programs may pay for Medicare premiums and some pay Medicare deductibles and coinsurance. To qualify, you must have limited income and resources.
I assigned the post to my students. I think it will help them get the parts right in their heads before we start drilling down into the details of each program.
Friday, November 1, 2019
My students are finding really interesting items to share with you. Here are a couple more of them.
Sara Boyko writes about an inter-generational approach to nursing homes
Nursing Home in China has a Kindergarten
(When the Young at Heart and Old Souls Cross Paths)
A nursing home in China made news recently due to some unconventional approaches to recreational activity. The nursing home boasts a kindergarten class where the children shoot ping pong balls at the nursing home employees while gray-haired onlookers enjoy some much-deserved comedic relief. There are two positive benefits to mixing the old souls with the young at heart: first, that exposure to the elderly by young children can help to break down stereotypes about what it means to be ‘old’; and second, that when elderly populations stop seeing themselves as a stereotype of an elderly person, it actually has positive health and cognitive benefits.
Everyone ages in different ways and at different rates. It is a very individualized journey for each person. When young children are exposed to the elderly who are in different stages of aging, it helps to reinforce this notion. However, while researching the topic of stereotypes of the elderly, I came across a startling article in the Journal of Geriatrics. When older adults start to see themselves fit into the stereotype of an elderly person, it actually makes them feel older. This, in turn, affects their health. For example, when an elderly person is exposed to a stereotype threat in an empirical setting, it has negative effects on their memory performance. The same has been shown for math performance.
On the flip side of that coin, viewing one’s self as young and vibrant can have the opposite effect. This is why mixing together kindergartners and the elderly can have such a strong and lasting impact for all people involved. Those nursing home residents can get a break from their routine of medications and small-talk, to a genuinely engaging afternoon pastime of watching children frolic about. The children will, in turn, no longer view the elderly as a homogeneous group of declining adults and eventually come to view these residents as individuals in various stages of development.
So what do you think? Should more nursing facilities mix age groups in this way?
Peyton Marshall alerts us to a new project regarding caregivers:
Kaiser Health News published an article called “Drumbeat Builds for a Peace Corps of Caregivers”. The need for caregivers is expected to grow substantially, as “those age 85 and up, who tend to have multiple chronic illness and difficulty performing daily tasks—are set to swell to 14.6 million in 2040, up from more than 6 million now.” While the job market for caregivers is expected to grow, the job of a caregiver is difficult and low paying, and the profession has a high turnover rate.
Therefore, four organizations—Oasis Institute, the Caregiver Action Network, the National Association of Area Agencies on Aging, and the Altarum Institute—have partnered together to remedy the problem of shortage of caregivers and caregiving services. These organizations have created the Care Corps Project. The goal of the Care Corps Project is “to discover innovative, effective programs that offer services to diverse communities (geographic, racial and ethnic) and that can be replicated in multiple locations.” The Care Corps Project recently received an initial grant of 3.8 million dollars (total funding expected to be 19 million for a five-year period). While this initial grant is small in comparison to the need, it is the step in the right direction, which hopefully will spur more investment in the Care Corps.
The Care Corps project (this Fall) will be looking for organizations to submit proposals “to serve ‘non-medical’ needs of older adults and younger adults with disabilities.” The goal is that the proposals will provide details such as the specific service the organization wants to offer, the number of volunteers, and its sustainability and transferability to other regions. Then, in the spring, organizations, whose proposals were selected, will receive a grant to implement their proposal. Therefore, this program can have the potential to increase quality of life for elders throughout the country. If your organization has an innovative solution for caregiving, it is time to start writing your proposal.
Thursday, October 31, 2019
Sign up now for this upcoming November 20, 2019 webinar from the National Center of Law & Elder Rights. The webinar is on Advanced Training on Medicare Part B, and is scheduled for 2 p.m. eastern. Click here to register. According to the announcement,
Wednesday, October 30, 2019
The D.C. Bar recently released a new ethics opinion addressing the obligations when an attorney becomes impaired. Ethics Opinion 377 Duties When a Lawyer is Impaired starts by explaining
The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervisory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.1 A related question involves the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.
This Opinion deals only with mental impairment, which may be a chronic or temporary condition arising out of or related to age, substance abuse, a physical or mental health condition or other circumstance affecting the lawyer. This Opinion supplements the guidance contained in Legal Ethics Opinion 246, with a specific focus on the issue of impaired lawyers, whose conduct may or may not trigger mandatory reporting obligations under the Rules, as discussed herein. This Opinion also relies, in part, upon ABA Committee on Ethics and Professional Responsibility Formal Opinion 03-429 (2003).
The impairment of a lawyer may fluctuate over time, regardless of its cause. However, if a lawyer’s periods of impairment are on-going or have a likelihood of recurrence, then partners, or other lawyers with managerial or supervisory authority may have to conclude that the lawyer’s ability to represent clients is materially impaired.
A range of ethics rules are implicated, including those setting forth the duties owed by lawyers to clients and the profession, and those addressing issues of supervising lawyers and non-lawyer employees. At the outset, and as discussed within this opinion, the Committee recognizes that there are tensions between ethical duties that arise under the D.C. Rules of Professional Conduct (the “Rules”) and requirements or prohibitions that may exist under the substantive law, specifically with respect to employee privacy and other rights. Lawyers and law firms must be cognizant of the legal landscape in which these difficult issues occur.
Mental impairment may lead to an inability to competently represent a client as required by Rule 1.1, to complete tasks in a diligent and zealous manner as required by Rule 1.3, and to communicate with clients about their representation as required by Rule 1.4.
Rule 5.1 requires partners or other lawyers with managerial or supervisory authority to make reasonable efforts to ensure that all lawyers and those under their supervision comply with the applicable Rules and to ensure that their law firm or government agency has in effect measures giving reasonable assurance that all lawyers in the firm or agency conform to the Rules. These provisions require managerial or supervisory lawyers who reasonably believe or know that a lawyer is impaired to closely supervise the conduct of the impaired lawyer because of the risk of violations of the Rules and resulting harm to clients. Rule 5.2 may also apply to subordinate lawyers if they know of and ratify the conduct of the impaired lawyer.
Rule 8.3 requires a lawyer, regardless of managerial or supervisory authority, to report an impaired lawyer to the appropriate professional authorities including, but not limited to, the District of Columbia Office of Disciplinary Counsel,if the impaired lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law, unless such disclosure would be prohibited under the duty of confidentiality owed to clients under Rule 1.6 or other law.... Further, if the firm or government agency removes the impaired lawyer from a matter, it may have an obligation under Rule 1.4 to discuss with the client the change in staffing on the matter. The duty to discuss removal of government lawyers from a matter may be different because of government policies or regulations.
If the impaired lawyer resigns, is removed or otherwise leaves the law firm, the firm may have additional disclosure obligations under Rule 1.4 to clients who are considering whether to remain with the firm or to transfer their representation to the departing lawyer. However, the firm should be cautious to limit any disclosures to necessary information permissible to disclose under applicable law. The obligation to report misconduct under Rule 8.3 is not eliminated if the impaired lawyer leaves the firm.
Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment. This purpose should not be forgotten as lawyers, firms and agencies seek to comply with the ethical mandates discussed herein. (citations omitted)
The lengthy discussion examines the duties of others who supervise or have some managerial duties, as well as the duty to report. It concludes that:
In circumstances where a law firm or government agency addresses the issue of an impaired lawyer, there is a crucial balancing between protecting the interests of the clients and properly discharging the law firm or government agency’s obligations to protect the privacy of the lawyer under substantive law. Having appropriate policies and procedures designed to encourage reporting and to address issues of impairment within the law firm or government agency are important steps in ensuring that an impaired lawyer does not violate the Rules and that partners, and managerial and supervisory lawyers properly discharge their duties under the Rules.
Tuesday, October 29, 2019
For those of you who are regular readers, you'll remember a few weeks ago I posted a couple of students' writings about recent events. Here are a couple of more.
First, on the new provision for CMS to point out abuse:
A Stop Sign for SNFs
By Sabrina Chianese
Pictured here is a new symbol from CMS, to be put to use on October 23. If you see this symbol on CMS’s Nursing Home Compare, it’s a sign that the home you’re researching has “received inspection-report citations for abuse that led to the harm of a resident within the past year — or citations for abuse that could have potentially led to resident harm in each of the previous two years.” In other words, skilled nursing facilities with this symbol have committed some pretty serious abuses against their patients.
The reason for this symbol is simple – CMS wants to both promote safer, higher-quality SNFs and to make consumers more aware of which facilities have caused harm to patients. The American Health Care Association views this change positively; however, it is also argued that, to fully allow for consumer knowledge of these issues, there needs to be an option for the patients, families, etc. to provide public feedback on their care.
I think it’s a good idea to increase exposure to the issue of nursing home abuse, as we’ve seen some horrendous cases in just this past couple of years. A facility in Massachusetts was cited multiple times for abuses, including medication mismanagement, staff members verbally abusing patients, and patients harming other patients. Most recently, a resident of that facility used a walker to kill his roommate. During Hurricane Irma, twelve residents of a Florida nursing home died when the facility lost its air conditioning and failed to move residents to a safer, functioning building; some patients reached temperatures of over 107 degrees. Homicide charges are being pressed, and Florida law now requires “backup power sources [like generators] in Florida nursing homes and assisted-living facilities” as a direct result of this tragedy. Additionally, at a CLC for veterans, one patient passed away after being covered by and “feasted on” by fire ants, despite claims that the facility had tried to solve the problem the first time he was swarmed.
AARP has provided information on how to handle nursing home complaints from a consumer or resident standpoint. Having insurance for missing items, being aware of dietary restrictions, fostering positive relationships with staff, being engaged in a family member’s care, and reporting abuses are some of the methods that AARP advocates depending on the severity of the complaint.
While it’s important to know how to deal with complaints, potential abuse, signs of malnutrition, and other serious problems, it’s equally important for people searching for this specialized care to know which facilities have committed abuses beforehand. I would even argue that it’s more important – no one wants to be in a position where their loved one is harmed or even killed because they unknowingly selected a nursing home that had been cited for multiple serious offenses. Part of the reason for the new symbol is because positive ratings through the CMS’s star system can be misleading.
While it’s a small step, I think having the symbol is still a helpful idea – we need to make people aware of what abuses are being committed and which facilities are repeat offenders. I thus also agree that having the kind of service advocated for by the American Health Care Association – a Yelp-like service for nursing homes – will be helpful, too, because it lets people read about the experiences of others while they are in the process of researching a nursing home.
Second, a post from student Melissa Shafer about robotic pets:
NBC News published an article about the positive impacts robotic pets have on the elderly, specifically for individuals living with dementia. Several companies, such as Tombot and Joy for All, produce robotic pets as companions for the elderly and people with disabilities, while aiming to offer them at reasonable prices. Robotic pets are designed to replicate some of the behaviors of living pets to make them seem more lifelike, such as the ability to purr, wag their tails or move their heads. Many of these companies started producing robotic pets in response to loneliness and lack of companionship experienced by the elderly.
A 2018 study by AARP found that about one third of people aged 45 and older were lonely. In addition, the World Health Organization published an article in 2017 and determined that for individuals over 60, roughly 20% were experiencing a mental or neurological disorder, most often as a result of dementia and depression. The use of robotic pets is aimed to address these issues.
Furthermore, research by NBCI confirmed that interactions between adults and animals increase quality of life by reducing anxiety in patients with dementia, and decreasing rates of depression and loneliness. While robatic pets are not living animals, they may be a great solutions for the elderly that would benefit from companionship when they are no longer able to manage the care required of a living pet. This is especially the case for individuals that had a pet pass away, or for those that had to give up a pet because they were not able to keep up with the maintenance a living pet requires. While the trend of robotic pets is still on the rise, they may remedy loneliness, depression and anxiety that the elderly population can experience, to increase their overall quality of life.
Joy for All: https://joyforall.com/
World Health Organization: https://www.who.int/news-room/fact-sheets/detail/mental-health-of-older-adults
Monday, October 28, 2019
Here's where you register for the newsletter.
According to the announcement I received, this what Bold School is about:
Friday, October 25, 2019
A number of law profs are signing on to initiative to reduce paper advertisements between law schools. Here's the info about the initiative and how law profs can sign on to the pledge.
In honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools. Most of this material is discarded without ever being read. However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.
Continuing this practice is unconscionable in the current era, given the availability of electronic marketing options. Limiting or eliminating reliance on paper-based materials will not only reduce the destruction of forests, it will also reduce carbon emissions generated as part of the printing and transportation processes.
Given the competitive nature of higher education, it is unlikely that individual law schools will act on their own initiative to stop or significantly curtail paper-based marketing for fear of risking their rankings. However, positive results may be obtained by coordinating actions across numerous law schools.
Individual faculty members as well as law schools both inside and outside the United States are therefore invited to join the Pledge to Reduce Academic Marketing Waste by emailing Prof. S.I. Strong (email@example.com) to indicate their support. The names of individual law professors and institutions who have adopted the Pledge will be published on a webpage housed at Pace University. That webpage is regularly updated to show increased support for this initiative.
The language of the Pledge is as follows:
We, the undersigned, hereby pledge to reduce academic marketing waste, individually and institutionally, by limiting or eliminating the production and transmission of paper-based marketing materials and/or by encouraging the relevant decision makers at our institutions to adopt actions and polices consistent with that goal. Reducing academic marketing waste can take a variety of forms, including but not limited to: (1) reducing the size of paper-based marketing materials (eg, replacing newsletters with postcards); (2) reducing the frequency of paper-based marketing initiatives; (3) adopting an opt-in rather than opt-out approach to paper-based mailing initiatives; (4) replacing some or all paper-based marketing with electronic or other forms of marketing.
Please feel free to forward this message to anyone at your institution or in your network who you think might be interested in joining the Pledge. The current signatories can be seen here -
https://law.pace.edu/academics/juris-doctor-program/environmental-law-program/pledge-reduce%C2%A0academic-marketing-waste - although more are being added all the time.
Tuesday, October 22, 2019
On Monday, I participated in a panel discussion of aging services in Pennsylvania, at the invitation of Professor Patricia Aguilera-Hermida, who is on the faculty of Human Services and Family Studies at Penn State Harrisburg. Even though I knew most of the panelists -- all experienced professionals from Pennsylvania's Department of Aging -- the occasion gave me new insight and respect for the role of advocacy on behalf of older adults. The students were attentive and asked great questions, and I suspect some of them saved their best questions for the one-on-one time with the speakers.
Robert Torres, the Secretary of Aging in Pennsylvania reminded us that our state has a uniquely strong, dedicated funding system to advocate for older adults through the Pennsylvania Lottery. About 80% of the department's operations and outreach budget is funded by this source. As anyone who has worked in state or federal government would know, the "fight" for adequate funding for operations can be intense, and in many states older adults would not have a strong position in the queue for necessary dollars.
The breadth of programming outlined by the panelists is impressive. For example, Christine Miccio, Director of the Bureau of Aging Services described in detail the OPTIONS program that provides direct support for more than 55,000 older adults who are still in their homes. Pennsylvania also has more than 500 publicly supported Senior Centers -- a way to reach additional people with meals, health care information, activities and social programs. Margaret Barajas, a dynamo who is the Statewide Long-Term Care Ombudsman, explained how a system of volunteer and paid advocates investigate and coordinate responses to concerns about senior living-based needs, including concerns about quality of services in nursing homes and assisted living facilities. Denise Getgen, as director of the Older Adult Protective Services Office, described the ever growing need for investigation of complaints about elder abuse, neglect and exploitation. In recent years, the number of complaints received and investigated by the state has grown to over 40,000 allegations per year, with the majority of concerns focusing on self-neglect for persons in isolated circumstances. I've worked with several of these units directly over the years, especially when I was head of my Law School's Elder Protection Clinic. Pennsylvania's Area Agencies on Aging continue to fund and coordinate certain free legal services for seniors in need in each county throughout the state.
One student asked about whether services from the Department are limited to "citizens" of the United States -- and it was impressive to hear the long list of services that are NOT restricted by citizenship. Another student tossed a "softball" question -- "what is your favorite program?" -- and Christine Miccio hit it out of the park by describing the success of a new pilot program in rural Pennsylvania that matches up older adults who need housing or assistance -- with those who can provide housing or assistance. She joked that she is now the eHarmony of housing matches, especially as the original pilot program is extending to several additional counties.
My thanks to Professor Aguilera-Hermida for hosting this noon-time chat with so many students who are considering a wide range of aging services as part of their career goals. One enterprising student explained to me that her interest in the field of gerontology at medical school was sparked when she found affordable housing as a student in a well-known, nearby nursing home that had "extra" space.
Friday, October 18, 2019
Here's a new fact sheet from the Keck School of Medicine at USC on an important topic. What I should know about opioid pain medicine is a valuable 2 page fact sheet in an easy-to-use format. The topics include pain meds vs. opioids, items that interact badly with opioids, signs of overdoses and more.
Check it out!
Thursday, October 17, 2019
Here's an upcoming free webinar from the National Center on Law & Elder Rights on November 12 at 2 est:
Legal Basics: Self-Neglect and Hoarding Disorders
When: Tuesday, November 12, 2019 at 11:00 a.m. PT/2:00 p.m. ET.
Lawyers working with older adults are likely to encounter challenges related to self-neglect and hoarding. Intervening in self-neglect cases can be very complicated. Clients who have a hoarding disorder may be living in conditions that make it impossible for them to live in safety, resulting in self-neglecting behaviors. This Legal Basics session will discuss the most common root causes of self-neglect and hoarding disorders, provide insight into the complexity of the issues, and offer suggestions of how to offer help. The webcast will also explore legal issues and the lawyer’s role when working with older adult clients.
The webcast will cover:
- Understanding self-neglect and helping without harming.
- The line between self-neglect being a human services issue and a legal issue.
- Assessing possible hoarding disorder cases.
- Suggestions when working with a person with hoarding disorder.
- When hoarding becomes a legal issue.
This webcast is being presented as part of NCLER’s forthcoming Elder Justice Toolkit. Stay tuned for more!
Tuesday, October 15, 2019
The Tampa Bay Times ran an article a few days ago that raises some important issues. Florida’s assisted living facilities write rules on reporting deaths, injuries . explains the current reporting requirements when a resident is injured and the proposed change to the requirement.
When a resident in one of Florida’s assisted living facilities falls, dies or is seriously injured, that facility is required to tell the state within one business day that something has gone wrong. But a bill before lawmakers would give operators weeks to report such critical incidents — potentially leaving residents in harm’s way, elder advocates warn.
Industry groups for assisted living facilities, which crafted much of the bill’s language and handed it to lawmakers, say the one-day reports are not needed, and eliminating them will reduce onerous paperwork and unnecessary administrative fines.
Hang on for a second and think about this. There must be a reason for the current requirement... and advocates say it's because they "are necessary to inform state regulators quickly of potential incidents, and that the change is part of a decades-long deregulation of the industry that could put residents at greater risk."
The section on adverse incidents involves one of the key methods for alerting regulators when something goes wrong. Currently, an initial report must be filed if a resident dies, sustains serious injuries, goes missing or is transferred to a hospital or other facility for more intensive care — and facility administrators think they may be responsible.
Assisted living facilities are required by statute to submit up to two reports: one within one business day after an incident, and another full report within 15 days if the facility determines it is responsible. When a report is filed, the Agency for Health Care Administration can then use it to initiate an investigation if it raises concerns about resident safety.
The proposal requires just 1 report that is filed by 15 days, when the facility makes the decision that " the incident happened in the scope of its care, though it would direct the facility to begin investigating the incident within 24 hours" the article reports. The article indicates that the bill was brought by the Florida Senior Living Association, and is supported by AHCA. Advocates for residents take the opposing few-that is more regulation rather than less. The bill's sponsor in the Florida Senate is quoted as saying "the legislation [is] a “modernization” bill that would primarily update language in the statute, and allow residents to use devices to move around more easily or prevent falls.... [and that] the language to reduce the number of adverse incident reports was meant to bring assisted living facilities in line with a recent change made to reduce those reports for nursing homes, and “to make sure the language would be as similar as possible." Although the Senator has spoken primary with the industry folks, she plans to talk to resident groups too, the article reports.
Read the bill and follow it. If you live in Florida, let your elected representative know your position on this. If you live in another state, pay attention anyway. The revisions could be proposed in other states as well.
Monday, October 14, 2019
MarketWatch published an article last week on the amount of money you need to have for your retirement, If you want to have enough money when you retire, you need to know this. "Calculating future savings requires numerous factors, including current age and predicted retirement age, any current assets, how the portfolio is invested and at what rate a person can realistically expect that money to grow. The latter, known as a “rate of return,” includes inflation, interest and dividend payments, and many experts disagree on what individuals can anticipate that rate to be." There are various views regarding the percentages needed for the rate of return and there are a couple of ways to reference it, the article explains.
As with most other facets of retirement planning, an assumed rate of return can be different from one person to the next, said [one advisor]... The reality is that it is almost entirely dependent upon your own personal allocation....” Many advisers also have their own way of creating projections, and will show clients a few estimates — from conservative to aggressive — when making a financial plan. “There is no one perfect number to use....”
Still, investors may want to err on the conservative side, as it’s better to save too much than end up in retirement with too little.... And investors, especially younger ones, should not be chasing returns.
Bottom line, you need to start saving (the earlier the better) for your retirement if you plan to retire