Sunday, August 14, 2022

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. 

August 14, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Tuesday, August 2, 2022

New Videos from Center for Elders & Courts

The Center for Elders and the Courts has released some new videos you will want to view. First is the Probate Court staff video series which

Provides information and tools for probate court staff that wish to implement more rigorous conservatorship and guardianship monitoring. The series emphasizes important aspects of case management, report tracking, responses to potential fraud and abuse, and financial monitoring, including comparing assets, expenses and budgets over time and highlighting common problem areas to look out for. Intended for courts across the country and thus necessarily general in nature, the videos are particularly helpful to courts that currently lack local training resources. A separate series of videos for conservators helps them understand their role and how to prevent misuse of resources.

Next is a series for conservators.

In this short five-part video series, [the National Center for State Courts] provides information and tools for those who are thinking about becoming a conservator or conservators who have already been appointed by a court. The series gives an overview of what conservatorships are, the conservator’s responsibilities and role in protecting assets, why courts monitor expenses, and which expenses are allowable. Intended for the public and courts across the country and thus necessarily general in nature, the videos are helpful as an additional training resource but do not replace specific requirements and guidelines set by the local court.

 

 

August 2, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Monday, July 25, 2022

is Someone Ever Too Old to Hold Elected Office?

A recent opinion piece in the New York Times, Joe Biden Is Too Old to Be President Again,  gave me pause and I realized that  age (as in too old, not too young) is once again going to be a prominent part of the mid-terms and beyond.  In this context, is talking about someone's age (as in, too old to hold a specific office)  ageism, or is it a valid criteria for the ability to do the job dependent on the specific office held? Should the focus be on ability (physical, mental, or both) to discharge the duties of the office, the age of the person, or both? Regardless of anyone's respective position, it's going to be an issue in the campaigns.  I'm preparing for a interesting discussion with my students this fall.

July 25, 2022 in Consumer Information, Current Affairs, Discrimination | Permalink | Comments (0)

Tuesday, April 26, 2022

What Are Your Examples of Scarecrow Laws?

I'm working on a book chapter about filial support laws, where families (usually adult children) may be surprised to learn that their state or their country has a seldom-used law that mandates financial support or maintenance for indigent family members. In working on this chapter, I was considering using the concept of "scarecrow laws" as a metaphor.  This label can apply to laws which are seldom enforced but legislators resist repeal because the very existence of the law might serve as a warning -- a scarecrow -- about the consequences of bad behavior.

While working on the metaphor, I came across an interesting application from Shakespeare's play, Measure for Measure.  In Act 2, Scene 1, we hear a harshly ambitious deputy administrator calling for the ultimate punishment -- beheading -- of Claudio, a man convicted of a crime.  But the law in question, prohibiting sexual relations outside of sanctioned marriage, is "rarely enforced."  One of Angelo's subordinates objects to the harsh sentence. Angelo responds:

We must not make a scarecrow of the law,

Settling it up to fear the birds of prey,

And let it keep one shape, till custom make it 

Their perch and not their terror.

The irony is that Angelo also seeks to violate the same law with a woman who has attracted his attention, but he discounts his own admission as, so far, mere temptation.  

Shakespeare's use of the scarecrow characterization raises a legitimate question.  Should laws, little known and rarely enforced, be removed from the books, or allowed to remain, perhaps on the justification they serve as moral guidance?  

April 26, 2022 in Books, Crimes, Current Affairs, Discrimination, Ethical Issues | Permalink | Comments (0)

Thursday, April 21, 2022

Does Ageism Make Us Invisible and Less Valuable?

Yesterday I blogged about Dr. Levy's new book on ageism.  Now, continuing that theme, I wanted to be sure you saw this article in Healthline,  Do We Become Invisible As We Age? Mentioning Dr. Levy's book as well as other factors, the article explains that

"Ageism — prejudice, discrimination, and stereotyping based on age — is sometimes called society’s last acceptable “ism.” It happens at workto celebrities, and in everyday ways. And it can make people feel invisible as they get older...  A 2020 University of Michigan National Poll on Healthy Aging found that 82 percent of adults 50 to 80 surveyed reported regularly experiencing at least one form of “everyday ageism.” ...  And, according to the World Health OrganizationTrusted Source, “Every second person in the world is believed to hold ageist attitudes, leading to poorer physical and mental health and reduced quality of life for older persons.” ... Plus, the pandemic has only made ageism worse, by increasing the physical isolation and accordant invisibility of older adults... So, where exactly do we see ageism and what can we do about it?

The article addresses ageism by where it occurs: in the workplace, in health care, in popular culture, and exams ageism's impact on people. The article discusses why some folks have ageist views and quotes one expert who identifies two types of folks who have ageist views: "The first type are “egoistic ageists” who fear aging and consider old people both repulsive and irrelevant... The other type, ..., “compassionate ageists,” view old people as “pathetic and needy” and believe that they must be served and protected."  As far as kids and young adults, yep it happens there, according to the article, noting "that ageism 'starts in childhood and is reinforced over time.'"

The article discusses the respect for elders, the importance of self-perception, the work being done to fight ageism, and what still needs to be done.  This is a great article to assign to students!

April 21, 2022 in Consumer Information, Current Affairs, Discrimination, Other | Permalink | Comments (1)

Wednesday, April 20, 2022

Old Age Doesn't Have to Be a "Downer"

Professor Richard Kaplan sent me a link to a recent book review in the Wall Street Journal Breaking the Age Code’ Review: Riding High Into the Sunset.

Social psychologist Becca Levy spends much of “Breaking the Age Code” doing exactly that, weaving together case studies and her own research to demonstrate that old age doesn’t have to suck at all. The expectation that aging means decay, Ms. Levy shows, is actually a major reason it so often does—our negative view of aging is literally killing us. Chipping away at this widespread and deeply ingrained conviction has a measurable effect on health after just 10 minutes. ... n 2002 Ms. Levy combined results from the Ohio Longitudinal Study on Aging and Retirement with data from the National Death Index to reveal that, on average, people with the most positive views of aging were outliving those with the most negative views by 7½ years—an extraordinary 10% of current life expectancy in the United States. 

The author discusses factors that make us prone to negative views of aging, and in particular, the prevalence of ageism. However, the author goes on to address how to change our thinking to "break the age code."

Ms. Levy finishes with a vision of paradise: “A place where ageism does not exist.” But this is no idle fantasy, it’s Greensboro, Vt. She stops for homemade lemonade with an 81-year-old writer for the local paper and swims at Caspian Lake with a real-estate agent in her 80s. When older people and society around them are “harmonized in a productive way,” Ms. Levy continues, it shows how “aging can become a homecoming, a rediscovery, a feast of life.” Or—as Grandpa Eddie puts it after his adventure has left him closer to Spencer than ever before—“Getting old is a gift.”

I'm ordering the book!

 

April 20, 2022 in Books, Consumer Information, Current Affairs, Discrimination, Other | Permalink | Comments (0)

Wednesday, March 30, 2022

Victoria Law Foundation Hosts International Access to Justice and Legal Services Forum in Australia March 30 through April 1

Victoria Law Foundation International Access to Justice and Legal Services Forum
I had the unique privilege of joining an interdisciplinary team of professionals discussing timely concerns about access to justice for older persons, not only in the host country of Australia but around the world.  Our session, entitled Legal Need, Empowerment and Older People, began with Susannah Sage Jacobson and Eileen Webb, academics from the University of South Australia, who addressed ageism and specific examples of abuse, followed by Frances Batchelor, Acting Director of the Australian National Ageing Research Institute, discussing new consumer-based research on quality of residential care.  The International Access to Justice Online Forum is hosted by the Victoria Law Foundation and the UCI Law Civil Justice Research Initiative, with panelists across the three days of programming from Australia, the U.S, Canada, New Zealand and the U.K.  There is still time -- depending on which side of the international date line you reside -- to catch more presentations as the event runs through April 1, 2022.

In addition, research papers and reports and video captures of the program are being posted online.  Take a good look!  

March 30, 2022 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)

Tuesday, March 22, 2022

DOJ Found Colorado Violated the ADA

On March 3, 2022, DOJ announced "that Colorado unnecessarily segregates people with physical disabilities in nursing facilities, in violation of the Americans with Disabilities Act (ADA) and the Supreme Court’s decision in Olmstead v. L.C. The department’s findings, detailed in a letter to Colorado Governor Jared Polis, follow a thorough and multi-year investigation into the state’s system of care for people with physical disabilities." 

"We have concluded that the State is failing to serve individuals with physical disabilities in the most integrated setting appropriate to their needs. Unnecessary institutionalization is common in Colorado despite several programs to help adults with physical disabilities remain in, or transition back to, their own homes and communities." The press release containing the announcement is available here. The letter to the Colorado Governor is available here. 

March 22, 2022 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Friday, February 25, 2022

Adapting Family Law to Recognize Importance Of Older Members and Significance of Aging

Naomi Cahn of University of Virginia School of Law Law joins Clare Huntington, of Fordham Law  and Elizabeth Scott, Emerita Professor at Columbia Law, to propose needed changes in family law to reflect the impact of aging.  In their forthcoming article for Yale Law Journal (Vol. 132) titled Family Law for the One-Hundred Year Life, they contend family law must address the interests and needs of families across the life span, and not just those of younger people.  They point to three areas for focus: the dignity and autonomy interests of older persons, structural inequalities, and the need for legal mechanisms that are efficient and accessible.  An example of their calls for legal reform is the discussion of intrafamily personal care contracts:

The response of regulators and courts to intrafamily personal care contracts illustrates well the law’s failure to support family care, especially for low-income families. In arranging in-home care, older adults sometimes contract with service providers, but they also contract with family members. A care contract is especially helpful when an older adult wants to receive these services from a family member but the family member cannot provide care without compensation. But these agreements run into problems. If the older adult is trying to qualify for Medicaid, many states scrutinize the contracts to ensure they are not simply a means for transferring assets from the older adult to the younger relative, helping the older adult satisfy Medicaid’s means-tested eligibility requirements. Partly based on the assumption that familial care is provided altruistically, state regulators regularly find that the agreements are, indeed, fraudulent transfers. This is an example of class-based discrimination: intrafamilial contracts for care are not scrutinized by public authorities unless the care recipient seeks to qualify for public support through Medicaid.

Equally interesting is their discussion of "opt-in or opt-out" concepts for the definition of family.  All-in-all, this article looks to the future of judicial, regulatory and legislative legal systems, while also offering ways to challenge our students in the classroom now.  

 

February 25, 2022 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, State Cases | Permalink | Comments (0)

Wednesday, February 23, 2022

Australian Discussion About UN Convention on the Rights of Older Persons

The Older Persons Advocacy Network has announced an upcoming roundtable,  Age with Rights: Advocating for a UN Convention for the Rights of Older Persons.  "The Older Persons Advocacy Network (OPAN) is participating in the #Agewithrights global rally by holding a roundtable conversation about rights, ageism, and the need for supporting a UN Convention on the Rights of Older Persons. You'll hear directly from Caroline Carroll, Robin Vote, Natalie Clements, and Kathy Mansfield members of our National Older Persons Reference Group, who each have their own stories and views to share."  Click here to register, but note that this is being held in Australia, so mind the time zone differences!

February 23, 2022 in Consumer Information, Current Affairs, Discrimination, International, Other, Programs/CLEs, Webinars | Permalink | Comments (0)

Friday, February 18, 2022

"Dinobabies" at IBM? NY Times Article

The New York Times, among other publications, ran a recent article about an age discrimination case,  Making ‘Dinobabies’ Extinct: IBM’s Push for a Younger Work Force.   Here is a brief excerpt from the beginning of the article.  

In recent years, former IBM employees have accused the company of age discrimination in a variety of legal filings and press accounts, arguing that IBM sought to replace thousands of older workers with younger ones to keep pace with corporate rivals.

Now it appears that top IBM executives were directly involved in discussions about the need to reduce the portion of older employees at the company, sometimes disparaging them with terms of art like “dinobabies.”

A trove of previously sealed documents made public by a Federal District Court on Friday show executives discussing plans to phase out older employees and bemoaning the company’s relatively low percentage of millennials.

The documents, which emerged from a lawsuit contending that IBM engaged in a yearslong effort to shift the age composition of its work force, appear to provide the first public piece of direct evidence about the role of the company’s leadership in the effort.

The article is available here. The pleading referenced is one of the number of filings in the case, which is available on PACER. I found the pleading here

February 18, 2022 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

Friday, February 4, 2022

Social Security Survivors Benefits for Those LGBTQ Who Could Not Marry

The New York Times reported a few weeks ago that SSA has agreed that those LGBTQ who were in a committed relationship and couldn't marry until marriage equality are entitled to survivors benefits. Social Security Opens to Survivors of Same-Sex Couples Who Could Not Marry

Challenging the policy that limited survivor’s benefits to married couples took years and a class-action lawsuit that bears Ms. Thornton’s name. In November, the agency dropped its Trump-era appeals against Thornton v. Commissioner of Social Security and Ely v. Saul, two federal lawsuits brought by surviving same-sex partners or spouses.

The Social Security Administration now allows gay men and lesbians to receive survivor’s benefits if they can show that they were in a committed relationship and would have married had that been possible. The change could mean greater economic protection for a population with higher poverty rates than American adults overall.

Important and good news!

February 4, 2022 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Federal Statutes/Regulations, Social Security | Permalink

Thursday, January 13, 2022

Roundup of Articles

I've been off the grid for a while, so I have a backlog of articles for the blog.  I think they are interesting, even though they may be dated by a couple of months. So I'm going to list some of them here and if the topic interests you, click on the link to read the article.  There are so many, I'm not going to summarize or discuss them.

Lowe’s sees sales growth by helping baby boomers stay in their homes.

Costs and considerations for home health care of aging loved ones in Florida. (48 minute podcast plus accompanying article)

End-of-life conversations may be helpful to patients and families

From my friend Professor Naomi Cahn: Contextualizing Menopause in the Law.

The data that shows Boomers are to blame for the labor shortage

‘Greatest Generation’ runs counter to its wholesome image in survey on race, sex and combat during World War II

Private Equity Is Gobbling Up Hospice Chains And Getting Involved In The Business Of Dying

Three key numbers that explain America's labor shortage (discussing early retirement).

I have more for tomorrow's post and then I'll be "caught up" with the news!

January 13, 2022 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Discrimination, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, December 15, 2021

Loss of Dignity As Ageism

My friend Professor Naomi Cahn, sent this essay published in the Washington Post that really resonated with me.  Opinion: Please do not put a party hat on my head — and other indignities of old age. When I look at birthday cards that note a person is infirm because of age, or party decorations with an over the hill theme, I shake my head.  I'm glad I'm not alone in this.  The author offers that  she is "83 and have no idea if I’ll ever reach that three-digit number. But I’m warning my children and friends that if they dare to top my noggin with [a child's birthday party hat]  I will use every bit of strength to rise from my chair, grab a cane if there’s one handy and whack them all in the head."  She writes about the helpful folks who assume she needs assistance instead of asking first. Here's her approach

Whenever I get the chance, I announce my age. I do this because it’s a disservice to us older folks if we hide it. To me, that’s saying we’re ashamed to have lived so long. We’re covering up an important fact, as if we’re descendants of a long line of serial killers.

One way I’m protesting against the popular image of an old person is to be a showoff. On my 80th birthday, to celebrate my achievement of finally learning how to swim (the crawl, with flippers), I got a tattoo on my right biceps. I’d gotten my first on my left — my kids’ names and images reflecting them — for my 60th. But the newest has not shut me up.
Her approach to aging is quite positive and she offers good advice at the end of her essay:

If you’re a woman of my vintage, I ask this of you: Do not dye your hair. Do not get cosmetic surgery. Do not lie about your age. Be proud of the years you’ve lived, the talents you’ve contributed to your world and the importance of your being a witness to decades of history.

And maybe, get a tattoo.

So don't buy decorations or cards that imply an age number correlates with infirmities and remember that ageism is a real and harmful thing. 

December 15, 2021 in Consumer Information, Current Affairs, Discrimination, Other | Permalink | Comments (0)

Tuesday, December 7, 2021

What Do We Mean by Care? Heather McGhee Interviews Ai-Jen Poo

The New York Times is a host for The Ezra Klein Show, a podcast (and short written commentary) with episodes that generally appear on Tuesdays and Fridays each week. Ezra Klein is on paternity leave right now, and in his absence, Heather McGhee, author of The Sum of Us, interviewed Ai-jen Poo, MacArthur grant winner and author of The Age of Dignity: Preparing for the Elder Boom in a Changing America.  The discussion is timely.

Interestingly, the title assigned by the NYT to this podcast is "Every 8 Seconds, an American Turns 65.  How Do We Care for Everyone?"  

Use of that statistic seems to be intended to shock, or at least, to cause a nervous, worried reaction.  Yet the "8 Second" rate is also used for new births in the U.S.  At the outset of the interesting interview, Heather asks Ai-jen for a definition of "care."  Ai-jen responds in her usual fashion -- thoughtfully and carefully -- and says, in essence, "Care is the most fundamental form of support we offer others.  We both offer and rely on care; care is essential." She adds, however, that for most families, private care is unaffordable, whether the need is for child care, disabled family member care, or elder care.

I wonder why it is that we so often ask whether "we can afford" the care of older adults?  That implies the public form of "we." Yes, too often the response (if not the answer)  is "no," but I tend to think that one of the reasons for that fact is that we continue to think that we, as individuals, have some "right" to stay in our homes no matter how long we live, and no matter how much this becomes impossible to manage.  Is it just "too" hard as individuals to plan for alternatives? I think the answer is "yes," but if we aren't going to plan as individuals, it seems likely that the costs will always be treated as unaffordable by "the public."

December 7, 2021 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Retirement | Permalink | Comments (0)

Sunday, November 14, 2021

Equity for Older Adults Webinar

The National Center on Law & Elder Rights has announced a new webinar, Advancing Equity for Older Adults, Part 2: Putting Strategies into Practice, scheduled for Wednesday December 1, 2021 at 2 eastern.

This is a follow up to the first webinar, Advancing Equity for Older Adults, Part 1: An Introduction to Advancing Equity in Legal and Aging Services, presented on October 28th. It is not necessary to have attended the first training, but attendees are encouraged to watch the recording for an introduction to equity and racial justice for older adults. This webinar will apply principles and strategies to effectively advance equity in legal and aging services. Presenters from legal assistance and elder rights programs will describe the steps they have taken to center equity, with a focus on race equity, in their work, as well as lessons learned and promising practices for staffing, process, and evaluation. Attendees will receive actionable steps they can take and will learn about tools that advocates can incorporate in their own work to advance equity for older adults and serve those with the greatest social and economic need. Panelists will share their experience and will be available to answer questions from the audience.

To register for this webinar, click here.

Part 1 of the training is available here.

November 14, 2021 in Consumer Information, Current Affairs, Discrimination, Programs/CLEs, Webinars | Permalink

Friday, November 5, 2021

Age Bias by Health Care Professionals: Part 2.

Following the Kaiser Health News article (also in the Wall Street Journal), ‘They Treat Me Like I’m Old and Stupid’: Seniors Decry Health Providers’ Age Bias, Kaiser followed up with a webinar, Confronting Ageism in Health Care: A Conversation for Patients, Caregivers and Clinicians.

Ageism is not new, but the covid pandemic brought it shockingly into view. In its early days, the virus was shrugged off as something of concern mostly to older people, with some arguing they were expendable if the alternative was shutting down the economy. In the grave months that followed, many who died in nursing care were dehumanized in news reports that showed body bags piled outside facilities. To date, about 80% of those who have died of covid-19 have been older adults, including nearly 140,000 nursing home residents — a population beset by understaffing, inadequate infection control and neglect.

The panel included four doctors and an attorney who is the executive director of the Maine Council on Aging (it has an anti-ageism pledge.)  The video can be viewed here.

November 5, 2021 in Consumer Information, Current Affairs, Discrimination, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)

Tuesday, September 14, 2021

Highlights from Touro Conference on Aging, Health, Equity, and the Law (9.13.21)

Touro College's Jacob Fuschberg Law Center hosted a fabulous half-day, interdisciplinary program on Aging, Health, Equity and the Law.  Among the highlights:

  • A perfect kickoff with opening remarks on the theme of the conference from Syracuse Law Professor Nina Kohn, who outlined the civil rights of older persons, reminding us of existing laws and the potential for legal reforms;
  •  A unique "property law" perspective on the importance of careful planning about ownership or rights of use, in order to maximize the safety and goals of the older person, provided by Professor Lior Strahilevitz from University of Chicago Law School;  
  • Several sessions formed the heart of the conference by taking on enormously difficult topics arising in the context of Covid-19 about access to health care, including what I found to be a fascinating perspective from Professor Barbara Pfeffer Billauer  from her recent work in Israel. She started with an interesting introduction of three specific pandemic responses she's identified in her research. She then focused on how "Policy Pariah-itizing" has had a negative effect on health care for older adults, with examples from Israel, Italy, and China.  I was also deeply impressed by the candid presentations of several direct care providers, including nursing care professionals Esperanza Sanchez and Nelda Godfrey, about the ethical issues and practical pressures they are experiencing; 
  • Illinois Law Professor Dick Kaplan offered  timely perspectives on incorporating cultural sensitivity in Elder Law Courses.  His slides had great context, drawing in part from an article he published about ten years ago at 40 Stetson Law Review 15;
  • Real world examples about tough end-of-life decisions involving family members and/or formally appointed surrogates, with Deirdre Lock and Tristan Sullivan-Wilson from the Weinberg Center for Elder Justice leading breakout groups for discussions.

I know I'm failing to mention other great sessions (there were simultaneous tracks and I was playing a bit of leap-frog).  But the good news is we can keep our eyes out for the Touro Law Review compilation of the articles from this conference, scheduled for Spring 2022 publication.  I know it was a big lift to pull off the conference in the middle of the fall semester.  Thank you!

September 14, 2021 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Property Management, Science | Permalink

Thursday, September 9, 2021

Colorado City Makes Public Apology & Pays $3 Million to Settle Lawsuit Over Violent Takedown and Arrest of Older Woman

In May of 2021, we linked to emerging information about a June 2020 arrest of a 73 year-old woman with dementia in Loveland Colorado.  

The family of the older woman, Karen Garner, filed a civil suit.  On September 8, 2021, the City of Loveland issued a press release announcing a $3 million dollar settlement and expressing an apology to the family:  

“The settlement with Karen Garner will help bring some closure to an unfortunate event in our community but does not upend the work we have left to do. We extend a deep and heartfelt apology to Karen Garner and her family for what they have endured as a result of this arrest,” said Loveland City Manager Steve Adams. “We know we did not act in a manner that upholds the values, integrity, and policies of the City and police department, and we are taking the necessary steps to make sure these actions are never repeated.” 

***

“There is no excuse, under any circumstances, for what happened to Ms. Garner. We have agreed on steps we need to take to begin building back trust. While these actions won’t change what Ms. Garner experienced, they will serve to improve this police department and hopefully restore faith that the LPD exists to serve those who live in and visit Loveland,” Chief Bob Ticer stated.

Criminal charges are still pending against the officers involved in the violent takedown,  in her arrest, and for the detention of the injured woman who was then left without medical care in a holding cell while officers sat comfortably in a booking room, reviewing their own bodycam videos, appearing to laugh over the sound of her breaking arm.  For more, read here and here. 

There is a lot of work still ahead for so many police and detention units.  

September 9, 2021 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 2, 2021

Examining Use and Misuse of Tax-Exempt or Deferred Financial Retirement Savings Plans As Increasing Economic Disparity

Check out "America is Spending A Fortune to Help Rich People Retire in Luxury," authored by Michael Mechanic. Published this week in Mother Jones, the article examines how "America's most affluent" use Roth IRAs and similar "federally subsidized retirement accounts meant for middle-class savers" to maximize their wealth.  

But it turns out IRAs are only the tip of the iceberg. The bigger problem, according to Steve Rosenthal, a tax attorney and senior fellow at Urban-Brookings Tax Policy Center, is that, thanks to a series of bipartisan bills Congress has passed over the past quarter-century, the government spends a fortune subsidizing a whole range of retirement plans whose benefits flow overwhelmingly to America’s most affluent. “It’s unbelievable the amounts of dollars at stake, and how tilted they are to the high end,” Rosenthal told me. “It’s just staggering.”

 

Indeed, such subsidies are the federal government’s single biggest tax-related expense, costing hundreds of billions of dollars per year. From 2020 through 2024, the JCT estimates, tax breaks and deferrals for retirement contributions will cost the Treasury $1.9 trillion—far more than the cost of the child/dependent or earned income tax credits, tax deductions for charitable donations, tax exclusions on long-term capital gains, or corporate tax breaks for employer-provided health and life insurance benefits. “These retirement reform packages are exceptionally confusing and technical and long and really hard for anyone to sort out,” says Rosenthal, a former JCT staff lawyer himself. “But embedded in every one are easter eggs: big giveaways to the retirement industry and to high-net-worth individuals.”

There is a lot to unpack here, and I could certainly see a seminar course built around this topic, including the complexity of finding solutions that don't harm the more-modest investor who will need every dime in retirement.  

My thanks to University of Virginia Law Professor Naomi Cahn for sharing the article, and to her colleague at UVA, Professor Michael Doran, who is prominently cited in the article  for his critiques of so-called savings reforms that "delivered expensive and unnecessary tax subsidies," that benefited higher income families and the financial services industry.

September 2, 2021 in Consumer Information, Current Affairs, Discrimination, Federal Statutes/Regulations, Retirement, Statistics | Permalink | Comments (1)