Elder Law Prof Blog

Nova Southeastern University (Florida) Posts Notices on Hiring Opportunities for Law Faculty Positions

Elder Law Prof Blog reader, Professor Kathy Cerminara at Shepard Broad College of Law, Nova Southeastern University, has sent us a new faculty jobs posting for positions at her law school.  Here is an excerpt of key information:  

Nova Southeastern University Shepard Broad College of Law (NSU Law) invites applications for two entry-level or mid-level full-time, tenure-track faculty positions for the 2023-2024 academic year. NSU is classified as a research university with “high research activity” by the Carnegie Foundation for the Advancement of Teaching. NSU is 1 of only 50 universities nationwide to also be awarded Carnegie’s Community Engagement Classification, and is also the largest private, not-for-profit institution in the United States that meets the U.S. Department of Education's criteria as a Hispanic-serving Institution.

 

NSU Law is looking for candidates with outstanding academic credentials who demonstrate potential for teaching excellence and for a high level of scholarly achievement and community engagement in the following subject-matter areas: Civil Procedure, Environmental Law, Constitutional Law, and Health Law. Qualified applicants in other, related subject-matter areas may be considered. We especially welcome candidates who will enrich the diversity of our faculty; these candidates include women, historically underrepresented minorities, persons with disabilities, LGBTQI+ individuals, veterans, and others whose backgrounds, experiences, and viewpoints enhance diversity.

Additional information is available for interested candidates from Olympia Duhart, Associate Dean for Faculty Development and Chair of the Faculty Appointments Committee at olympia@nova.edu

Pennsylvania EJC Meets with Pennsylvania Supreme Court Justices

Representatives from all 9 Pennsylvania law schools (deans!) and from the recently formed Elder Justice Consortium (pictured here) met this week with the Justices of the Pennsylvania Supreme Court. Our thanks to Drexel University Thomas R. Kline School of Law for hosting the meeting at its Kline Institute of Trial Advocacy in Center City, Philadelphia.  The afternoon of conversation focused on future work needed to provide stronger, critical support for older Pennsylvanians through advice, advocacy and education. As summarized by the Consortium's chair, Kate Norton of Duquesne Law, a key goal is to inspire students and to establish a commitment to elder justice.    

Our discussion was robust, with lots of questions about funding sources and alternative educational modules for teaching elder justice, including direct service clinics and projects, as well as experiential education, modular courses, and collaborative programming.  An example? Widener University Commonwealth Law School's clinical professor Mary Catherine Scott, who is the director of the Commonwealth campus' Central Pennsylvania Law Clinic highlighted her clinic students' latest outreach, working with the Dauphin County Court of Common Pleas in its Pro Bono Guardianship Monitor Program.  Student are assigned to individual matters and will interview older adults who are under formal orders, as well as talking with other parties or interested persons, thereby providing additional eyes and ears for the court in assuring accountability for Court-appointed guardians. 

We look forward to the future!

 

The Myriad Benefits Available to Older Persons

Kaiser Health News published a recent article that focused on the various programs and benefits for older persons that they may not know about.  While Inflation Takes a Toll on Seniors, Billions of Dollars in Benefits Go Unused offers these examples to make the point:

A few examples: Nearly 14 million adults age 60 or older qualify for aid from the federal Supplemental Nutrition Assistance Program (also known as food stamps) but haven’t signed up, according to recent estimates. Also, more than 3 million adults 65 or older are eligible but not enrolled in Medicare Savings Programs, which pay for Medicare premiums and cost sharing. And 30% to 45% of seniors may be missing out on help from the Medicare Part D Low-Income Subsidy program, which covers plan premiums and cost sharing and lowers the cost of prescription drugs.

And yes, the article acknowledges that for many programs, eligibility is based on a means test, while for others, it's just a priority.  The article offers tips to find out if an older person is eligible for any of these programs, starting with the local Area Agency on Aging.

Saving an Arm & a Leg on Drug Costs

Kaiser Health News released a podcast yesterday about the new law for CMS to negotiate drug prices under Medicare. ‘An Arm and a Leg’: The New Cap on Medicare Drug Costs explains "[t]he U.S. Senate was voting on the Inflation Reduction Act, which among other things is designed to ensure that people on Medicare pay less for expensive drugs....It’s a big deal. Lots of seniors pay $10,000 a year or more for drugs or do without lifesaving treatment; once the new law kicks in, it sets an out-of-pocket limit of $2,000 a year. "

The link to the 26 minute podcast is available here.  A transcript of the podcast is available here.

A Model for Other States? Pennsylvania's Law Schools form Consortium in Active Support of Elder Justice

Faculty members representing all nine law schools in Pennsylvania have joined together in a unique effort.  The inspiration was communications initiated by jurists in the Pennsylvania Courts, especially Supreme Court Justice Debra Todd, promoting the need for sound legal advice and representation for older persons. The purpose of Pennsylvania academics' new Elder Justice Consortium is to identify, examine, and seek to alleviate challenges and difficulties facing diverse older populations across the Commonwealth. 

This mission will include support for direct legal services for older adults, sometimes through law school clinics or service projects, as well as "pop-up" outreach and educational modules that focus on older adults in underserved communities and regions.  

Duquesne University School of Law Assistant Professor Katherine L.W. Norton, who also serves as the director of clinical legal education programs at her school, is serving as the inaugural chair of the Consortium.  During the summer of 2022,  more than fourteen faculty members met regularly to identify ways that law schools can effectively increase our support and commitment to "elder justice."  Professor Norton reports the group invited guest speakers from IOLTA (Interest on Lawyer's Trust Accounts) and the SeniorLAW Center in Philadelphia to share their ideas on funding and needs, as well as seeking a legislative update on guardianship law reforms from Patrick Cawley, an Elder Law attorney from central Pennsylvania who earlier served as counsel for an influential committee in the Pennsylvania Senate.  Members of the consortium also exploring joining an amicus team in a case to be argued before the United States Supreme Court in November. The case addresses whether residents of nursing homes have the right to enforce key provisions of the federal Nursing Home Reform Amendments (OBRA 1987) via direct suit under Title 42, United States Code, Section 1983.  

The Consortium's next step will be for the Deans of the nine law schools to meet in September 2022 in Philadelphia with representatives of the Pennsylvania Supreme Court and other interested parties to discuss programming options and priorities for action with the support of our law schools.  Stay tuned, and let us know whether Law Schools in your state have similar teams on behalf of older people.

A Few Interesting Articles

I'm a bit behind and in an effort to catch up, in this post I just wanted to point out to you a few interesting articles that you hmay want to read.

1.  A robot that will catch an older person who is falling:  This robot catches grandma before she falls.

2. Probiotics and arthritis: Rheumatoid arthritis could be treated by eating probiotic bacteria.

3. Advance detection of Alzheimer's before symptoms manifest:  New Device Can Detect Alzheimer’s 17 Years in Advance

(Thanks to my dear friend Professor Feeley for sending me the links to the last two).

Consumer Financial Protection Bureau and CMS Jointly Caution Nursing Homes and Their Debt Collectors on Their Practices

Today, my Conflict of Laws class and I watched a live-streamed hearing involving "choice of law": "state" (about contracts) versus "federal law" (prohibiting practices affecting contracts)  The context is a bit dramatic and definitely overdue for action.

On the same day as the public hearing, which was hosted by the Consumer Financial Protection Bureau (CFPB) for panelists to identify concerns about certain debt collection practices used by nursing homes against the family members and others, CFPB and the federal Centers for Medicare and Medicaid Services (CMS) issued a "notification letter."  The letter, dated September 8, 2022 and addressed to "Nursing Facilities and Debt Collectors," details improper practices under federal law, such as asking "third parties" to sign documents that, in effect, serve as  personal guarantees of payment of nursing homes.  Without those guarantees, the nursing home may deny admission or continued care.  However, the third parties are often family members or even mere "friends," who may be trying to help get care, but who have little knowledge of the resident's personal finances or eligibility for Medicare or Medicaid, and who may not understand the risks of "agreeing" to sign the contracts.  

I began writing about this problem years ago in a series of articles.  In "The Responsible Thing to Do About Responsible Party Provisions in Nursing Home Agreements," I focused on misleading attempts to have someone agree to be a "responsible party" for purposes of the resident being admitted, without the signer's full understanding that the signature may be construed by state courts as a promise to pay if the resident cannot pay personally or does not qualify for Medicare or Medicaid payments.  See also "Traps for the Unwary in Nursing Home Agreements."

Recent studies conducted under the auspices of Kaiser Family Foundation (at KHN) provide additional examples of the hardships on families and friends. Unfortunately, the problems with attempts to hold third-parties liable for costs of nursing home care have become more intense with Covid-19 crises affecting long-term care.  Indeed, one of the pandemic-influenced contracting practices that adds to the problem is use of "on-line signing processes" for these contracts.  As family members were often not even present during the admission's process, nursing homes are increasingly turning to e-signatures. The swift moving electronic process for initials and virtual signatures all too easily flies by without any true reading, much less understanding, of the documents and with close to zero likelihood the signers will be able to ask questions (such as "Do I have to sign this?" or "What happens if I don't sign this?") and gain accurate answers.  Nursing homes deserve to be paid for their care -- but the right way to do this is to involve people who can help the families apply for benefits under Medicare or Medicaid, and who won't insist on private pay if the resident's resources are too low to support such pay.   

In my experience, thoughtfully-managed, well-run nursing homes definitely exist.  They get sound business and legal advice and know that is more cost effective to help families through the process than sue them when the documents are not understood.  Experienced elder law attorneys, including specialists in Legal Services offices, can help too.  But while reading the KHN report linked above, too often I was seeing "default judgments" involved here -- and in those instances, that usually means a lack of informed agreement on the part of signers or that the admission processes are otherwise not working properly.   

Is Florida Still An Affordable Retirement Option?

That's the question that was asked in a recent article in the Tampa Bay Times. Is Florida still an affordable place to retire? Amid rising costs, some seniors are reconsidering. Let me set the stage with this excerpt:

Cheaper than Miami or Naples, with destination beaches and a city once nicknamed “God’s Waiting Room,” Tampa Bay has long been hailed as an affordable place to retire in The Sunshine State.

But it’s becoming untenable for many seniors to survive in the area.

While costs are climbing everywhere, Tampa Bay’s prices have outpaced the national average. Area prices rose by roughly 11% in the last year, according  to the U.S. Bureau of Labor Statistics, compared to just 9% nationally.

Retirees, who depend largely on fixed incomes, are feeling it.

Read the article and draw your own conclusions. I have.

Planning for Your Special Needs Child and Retirement

The New York Times ran this article last week. Planning for Your Retirement, and for a Child’s Special Needs, All at Onceexplains "[f]or parents of children who have serious disabilities or special needs, the challenges of growing and preserving their wealth are magnified exponentially, and the stakes are much higher. While they are trying to plan for their own retirements, these parents need to simultaneously secure the ‌ stability of a son or daughter who will be dependent on them‌ until — and even  after — their deaths." The article does a good job of framing and discussing the issues and options and provides good examples.

CFPB Hearing On Nursing Home Debt Collection Practices

Consumer Financial Protection Bureau has announced a Save the Date: CFPB Field Hearing with Director Chopra on Nursing Home Debt Collection Practices

On September 8, 2022, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra will host a virtual discussion with advocates, service providers, community leaders, and members of the public to explore challenges around nursing home debt collection practices and the impact they can have on the financial wellbeing of caregivers, their families, and friends. We are looking forward to your participation, so please be sure to save the date.

To register, click here

When Private Equity Owns Nursing Homes

Last week the New Yorker newsletter ran this article, When Private Equity Takes Over a Nursing Home. Focusing on the sale of one nursing home, the article discusses the facility before the sale and after.

Nearly a quarter of the hundred-person staff had been with the home for more than fifteen years; the activities director was in her forty-fifth year. But the ownership change precipitated a mass exodus. Within two weeks, management laid out plans to significantly cut back nurse staffing. Some mornings, there were only two nursing aides working at the seventy-two-bed facility. A nurse at the home, who spoke on condition of anonymity for fear of retribution, told me, “It takes two people just to take some residents to the bathroom.” ,

Consider the prevalence of private equity's ownership of nursing homes. According to the article, "Since the turn of the century, private-equity investment in nursing homes has grown from five billion to a hundred billion dollars. The purpose of such investments—their so-called value proposition—is to increase efficiency. Management and administrative services can be centralized, and excess costs and staffing trimmed."  Further, "Private-equity firms currently own only eleven per cent of facilities, as a federal report found. But about seventy per cent of the industry is now run for profit."

This is an important article. 

Manager of Supportive Services Agency Charged With Financial Exploitation

Tennessee Bureau of Investigations issued a press release, Columbia Woman Charged with Financial Exploitation of Vulnerable Individuals. "At the request of Adult Protective Services, in August 2021, agents began an investigation into an allegation of financial exploitation of two  vulnerable adults. During the course of the investigation, agents developed information that identified ... the now-former manager of a service that provides support to people with intellectual and developmental disabilities, as the individual who used some of her clients’ finances on two dates in July 2021 for her own personal gain.

Air Travel When Using A Wheelchair

Did you see this article in the New York Times a couple of weeks ago?  Embarrassing, Uncomfortable and Risky: What Flying is Like for Passengers Who Use Wheelchairs is compelling and enlightening and makes the reader wonder if there isn't room for a lot of improvements from airlines and airports for these passengers.  If you haven't read it, you really must.  There is an audio version of the article also available at the same website, but the accompanying photos are also quite compelling. Follow the passenger in the story on his journey from arrival at the airport to arrival at his destination. 

Pennsylvania Bar Associations Issue Joint Guidance re Flat Fee Billing by Attorneys

Recently Pennsylvania Bar Association and Philadelphia Bar Association legal ethics committees issued a Joint Formal Opinion addressing ethical considerations in the handling of several related forms of billing for services:  flat fee, earned upon receipt, and non-refundable fees. Elder Law attorneys use various forms of such billing. 

On the one hand, clients often want to know up front the full cost for services and thus like flat fee billing.  On the other hand there can be tensions about whether or when such fees are "earned."  The opinion stresses the need for clarity in the client-attorney relationship, so as to assure mutual understanding about when a fee is deemed earned, and to make sure clients are fully advised about the fee structure. With older clients -- and their family members -- it can be especially important to avoid assuming everyone understands mere "labels" for different fee arrangements.

In Joint Ethics Opinion No. 2022-300, the Committees conclude that under Pennsylvania Rules of Professional Conduct and with the guidance of prior opinions:

• Any fee not “earned upon receipt” is deemed an “advance” fee, which may only be deposited into the operating account if the client provides informed consent, confirmed in writing, in accordance with Rule 1.15(i); and,

 

• When a fee is deemed to be “earned upon receipt,” attorneys may deposit the fee into an operating account rather than a Rule 1.15 IOLTA account or other Trust account, provided that the attorney specifically states in the fee agreement that the fee is intended to be nonrefundable and earned upon receipt.

Hat tip to Rob Clofine, elder law attorney extraordinaire, for sharing this with Pennsylvania lawyers.  

Can We Hear You Now? FDA Gives Final Approval for Over-the-Counter Hearing Aid Sales

The Food and Drug Administration issued its final ruling today permitting over-the-counter sales of certain types of hearing aids. The ruling takes effect in 60 days. As FDA explains:

This action establishes a new category of over-the-counter (OTC) hearing aids, enabling consumers with perceived mild to moderate hearing impairment to purchase hearing aids directly from stores or online retailers without the need for a medical exam, prescription or a fitting adjustment by an audiologist. 

 

The rule is expected to lower the cost of hearings aids, furthering the Biden-Harris Administration’s goal of expanding access to high-quality health care and lowering health care costs for the American public. It is designed to assure the safety and effectiveness of OTC hearing aids, while fostering innovation and competition in the hearing aid technology marketplace. . . . 

 

Concurrently with issuing the final rule, the FDA also issued the final guidance, Regulatory Requirements for Hearing Aid Devices and Personal Sound Amplification Products (PSAPs), to clarify the differences between hearing aids, which are medical devices, and PSAPs, consumer products that help people with normal hearing amplify sounds.  

This could be "huge" for helping older adults.  I know that for many adults, not just the older adults I've worked with, it is terribly frustrating to be unable to hear properly.  Plus, I think that for some people, the ability to "try" a wider range of devices, without the time and expense of visiting specialized doctors, may facilitate "realism."   

At the same time, I worry that for some older adults, who actually are willing to see their hearing aid doctor, sometimes it was this doctor or specialist who caught the "real" problems, including the potential for mild cognitive impairment.  Could we miss those opportunities for more holistic health evaluations? 

 

Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id. 

Know About NORCs?

The Ocala Star Banner newspaper ran a guest column explaining NORCs.  Naturally Occurring Retirement Communities give seniors the help they need to age in place explains  that "Naturally Occurring Retirement Communities (NORCs) are self-help communities that started springing up in 1992 with the founding of Community Without Walls in Princeton, N.J. They are not a formal community, but occur naturally in neighborhoods in small cities and urban areas, and are not cohousing. " 

The article highlights the versatility of NORCs: "[w]hile NORCs were first identified in urban settings, they can be found in communities large and small. They can be geographically defined by such boundaries as an entire apartment building, a neighborhood or a more rural setting over a large geographical area comprised of one- and two-family homes. Sometimes a NORC is not a physically connected locatioh, , but loosely organized around a church, synagogue or fraternal organizations."

Thanks to Julie Kitzmiller for sending me the link to this article.

Recent Articles on Nursing Homes

Two recent articles of note on nursing homes-in case you missed them. 

Kaiser Health News: Nursing Homes are suing friends and family of residents to collect debts.  This article is a result of a "partnership between KHN and NPR exploring the scale, impact, and causes of medical debt in America."

Politico:  The Crisis Facing Nursing Homes, Assisted Living and Home Care for America’s Elderly. I've blogged several times about the caregiver shortage, so consider this from the article:

Since January 2020, 400,000 nursing home and assisted living staff have quit, citing pandemic exhaustion as well as the low pay and lack of advancement opportunities typical of the field. The job losses arrive when America already faces an elder caregiver shortage, as 10,000 people daily turn 65 and birth rates decline. The labor shortage gripping America’s workforce across industries is felt most acutely in home health care. According to the Bureau of Labor Statistics, home health and personal care aides are actually the fastest growing industry, projected to grow 33 percent in the next decade, much faster than all occupations. But there still simply aren’t enough workers to fill the demand.

“The numbers alone suggest we’re going to need a lot more people in the caregiving sector than we have now,” says Tara Watson, a fellow at the Brookings Institution and professor of economics at Wiilliams College. “We need to make some changes in order for that to happen.”

Update on Medicare Observation Status-Appeals Process Announced

The Center for Medicare Advocacy announced in their newsletter a few weeks ago that Medicare has announced the development of an appeals process for certain patients on observation status.

As the result of a court case, the Medicare.gov website now alerts a nationwide class of Medicare beneficiaries that they “have appeal rights” when a hospital changes their status from inpatient to outpatient observation, and that the appeal process is currently under development. View the information here (click on “Appeals in Original Medicare” and scroll to “Coming Soon: Appeal when a hospital changes your status from an inpatient to an outpatient with observation services.”).

The “observation” designation can have severe ramifications for beneficiaries. Many will face no coverage for post-hospital nursing home care, which requires a prior “inpatient” hospitalization of at least three days. Time spent in observation status does not count towards the required inpatient stay, even though observation stays can last several days and the care can be indistinguishable from inpatient care.

The full article is available here. Information about observation status appeals can be found here (click on appeals in original Medicare).

Private Equity in the Business of Hospice?

Kaiser Health News a couple of weeks ago ran an article, Hospices Have Become Big Business for Private Equity Firms, Raising Concerns About End-of-Life Care.  "Hospice care, once provided primarily by nonprofit agencies, has seen a remarkable shift over the past decade, with more than two-thirds of hospices nationwide now operating as for-profit entities. The ability to turn a quick profit in caring for people in their last days of life is attracting a new breed of hospice owners: private equity firms."  Check this out: "According to a 2021 analysis, the number of hospice agencies owned by private equity firms soared from 106 of a total of 3,162 hospices in 2011 to 409 of the 5,615 hospices operating in 2019. Over that time, 72% of hospices acquired by private equity were nonprofits. And those trends have only accelerated into 2022."  

The article explores concerns expressed regarding private equity firms owning hospices, including quality of care and profit margins. It also discusses for-profit vs. non-profit hospices.  Check it out!