Elder Law Prof Blog

When the Pandemic Comes to a NORC Near You...

In senior living, one of the more interesting phenomena are so-called "naturally occurring retirement communities," or NORCs.  This label, or a related "village" label, is often used to describe residential settings where a large proportion of the population is now over the age of 60, not by design or plan.  The citizenry has continued to live there as they age, and has attracted complementary local service industries, such as wellness programs, home health visitors, day care options, and adapted transportation modes.  Some of the early, well documented and often studied NORCc include Beacon Hill in Boston, and Upper Park Heights in northwestern Baltimore.  Residents in the area often take great pride in the trend, emphasizing it as a positive way to age in place, drawing upon appropriates supports that help to maintain individual dignity.  

But what happens when a new, highly infectious disease also finds its way into a NORC?  As is too often true in law, the answer is probably, "It depends."

One such place is Co-op City in the Bronx.  According to some reports  it is the largest residential development in the U.S., with 43,000 residents in 36 towers and seven townhouse clusters, plus larges grass fields, walking paths, a community garden, nearby schools, shopping, and its own Little League baseball field.  Development of the planned, cooperative housing projects that comprise Co-Op City occurred from approximately 1966 to 1976.  The 2000 census showed that  60.5% of the population of Co-op City was African American, about 27.7% were Hispanic or Latino and about 8.6% were white.  A corporation is in charge of management.  

Co-Op City has also become an unplanned NORC, with one of the largest populations of elderly in the country.   As early as 2007, public sources estimated that over 8,300 of the residents were over the age of 60.  See also 2016 statistics that indicate that 21% of the population in District 10 (where Co-Op City is located) is over age 65, in comparison to New York City's overall age 65+ population of 16%.  Co-Op City is recognized as a NORC-JASA community for age-related programming and services.  

In 2020, the Bronx generally and Co-Op City especially appear to have been hard hit by the corona virus. Public media sources, reporting here and  here, use statistics released by city health officials,  to reveal "that the virus has killed at least 155 people in the zip code" that covers Co-Op City. "That's roughly 1 in every 282 residents."  (Hmm.  I'm not sure about the numerators and denominators used in these articles).  

It may be tempting for some to dismiss negative statistics in any single statistical areas as due to a single factor, such as vulnerability tied to advanced age.  That can be dangerous as discussed in the  article by Barbara Pfeffer Billauer, linked in my May 26 post.  

Instead, take the time to consider other factors that may point to the deep risk of infectious disease in certain congregate settings and that appear to exist in Co-Op City:

• a geographic community with physical constraints that mean residents depend on public transit -- at a higher risk -- for much of their connection to the working world, including non-family caregivers and service providers; 
• confined locations to do necessary shopping for food and pharmacy supplies;
• comparatively tightly packed living or working spaces; 
• and, significantly, common ingress/egress for buildings via limited numbers of hallways and tall towers of elevators for all such comings and goings. 

In this instance, a NORC, usually considered a better space for aging in place, arguably may have become a large-scale version of a nursing home, with abundant opportunities for building-to-building, apartment-to-apartment transmission of infections.  At a minimum, perhaps this is another reason to think more aggressively about public health strategies and health policy priorities in light of the lessons we are learning from the Covid-19 pandemic. 

Special thanks to my Dickinson Law colleague, Professor Sarah Williams, for alerting me to what is happening with coronavirus in Co-Op City.  

 

Barbara Pfeffer Billauer: An International Perspective on Ageism in the Time of Corona

George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on  "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona."  This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed.  She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years.   Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."

She continues:

It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.

 

At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.” 

Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."

Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.

She questions the statistical basis for some governments' decisions to impose mandatory isolation:

The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.

 

But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?

She is provocative.  She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.

For more, read the full blog post linked above.  For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!

 

NYT: Homes with Significant Number of Black and Latino Residents Twice as Likely to Be Hit by Coronavirus

The New York Times offers deep analysis of the impact of race on coronavirus infection rates in nursing homes.  A lot to unpack, starting here:

The coronavirus pandemic has devastated the nation's nursing homes, sickening staff members, ravaging residents and contributing to at least 20 percent of the nation's Covid-19 death toll.  The impact has been felt in cities and suburbs, in large facilities and small, in poorly rated homes and in those with stellar marks.

 

But Covid-19 has been particularly virulent toward African-Americans and Latinos:  Nursing homes where those groups make up a significant portion of the residents -- no matter their location, no matter their size, no matter their government rating -- have been twice as likely to get hit by the coronavirus as those where the population is overwhelmingly white.

For more issue spotting, read The Striking Racial Divide in How Covid-19 Has Hit Nursing Homes.

 

 

Professor Nina Kohn's Important Op-Ed in the Washington Post

Syracuse Law Professor Nina Kohn (currently a visiting professor at Yale Law), has an important Op-Ed in the Washington Post, in which she tackles the not so subtle ageism that accompanies response to COVID-19 -- while making it clear that the issues are much deeper than a single disease.  She writes:

Of course, older adults are at heightened risk, even though covid-19 strikes younger people, too. But across America — and beyond — we are losing our elders not only because they are especially susceptible. They’re also dying because of a more entrenched epidemic: the devaluation of older lives. Ageism is evident in how we talk about victims from different generations, in the shameful conditions in many nursing homes and even — explicitly — in the formulas some states and health-care systems have developed for determining which desperately ill people get care if there’s a shortage of medical resources.

For more, read The  Pandemic Exposed a Painful Truth:  American Doesn't Care About Hold People.  The subtitle?  "We speak of the elderly as expendable, then fail to protect them."

Ageism in the Time of Corona

Ageism isn't a new issue; it is a long-standing issue. But it seems now, during the pandemic, for some, their expression of ageism seems more overt and more pointed, although not directed at a specific person.  Consider the following:

The pandemic has amplified ageism. ‘It’s open season for discrimination’ against older adults.

or

Texas Lt. Governor: Old People Should Volunteer to Die to Save the Economy

or this

Dozens rally at TN capitol, call for Gov. Lee to re-open state immediately  (click on the link to see the photo of the sign).

or this

Ageism Is Making the Pandemic Worse.

There's a recently released study, Aging in Times of the COVID-19 Pandemic: Avoiding Ageism and Fostering Intergenerational Solidarity, in which the authors conclude :"[I]n this editorial we have been concerned with the effects of the COVID19 public discourse on the lives of older adults, and the solidarity between generations. We believe that behavioral scientists have a responsibility to participate in the current public discourse to correct misperceptions, over-generalizations, and ethically questionable suggestions."

Now consider this

Just Because I’m 90 Doesn’t Mean I’m Ready To Die ― Or Disposable

or this

Capt. Tom’s 100th birthday: 150,000 cards, a promotion and a fundraiser worth $39 million.

This is where I should talk about the teaching moments this has provided for us, and I know  I will cover this is my classes.  For now, with each of those stories highlighting cases of ageism, I alternate between appalled and sad.

 

AALS Call for Papers/Presenters on Intersectionality, Aging and the Law

The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January.  The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."  

I like this definition of "intersectionality": 

The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.  Example:  "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."

We need great presenters!  

From Naomi Cahn at George Washington Law:

We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics.  The conception of the program is broad, and we are exploring publication options.

If you are interested in participating, please send a 400-600 word description of what you'd like to discuss.  Submissions should be sent to Professor Naomi Cahn, [email protected], by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.  

AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times:  The Power of Words

 

OK Boomer

I've waited quite a while to blog about this issue. For some months now, I've been discussing "Ok Boomer" with my students. It's a great opportunity to discuss the interaction of generations on various issues, including the funding of social programs and whether the phrase is ageist.  We know it became main stream when Chief Justice Roberts used it. It also appears as the subject of a number of memes.

Then the pandemic came, and one of my students told me about "boomer remover" which frankly left me aghast.  Then finally, one of my friends sent me the link to this cartoon, (see below, reprinted with permission) showing a kinder take  on the pandemic's impact on boomers.  So if you need an uplifting moment, check it out here.  To learn more about the author, Syne Mitchell, and to follow her cartoons, click here.

 

Student Views of Recent Events

I gave my students an assignment to write a blog post on a current event that would be of interest in a class on law and aging.  Here are two that I've received---I thought you might find them interesting.

Post #1

This was supposed to have been a fun family weekend.  My sister-in-law was headed home with a car filled with special treats and presents to celebrate my niece's sweet sixteenth birthday.  The weather was clear and traffic was moving smoothly when the crash occurred.

A ninety year old drove through a stop sign and directly into traffic, causing a multi-car accident.  My sister-in-law had to be cut from her SUV and taken to the trauma center.  I saw her crumpled vehicle first-hand, and it is an absolute wonder she survived.  It is uncertain how long her injuries will significantly impact her life.  Yet, she was the incredibly lucky one.

A young couple and their infant was also struck by the elderly driver's car.  Seeing this family's vehicle was horrific.  I knew the infant was in critical condition at the hospital.  When I saw this car, it looked as if it had been in a compactor; it didn't seem possible for anyone to survive.  Unfortunately, the infant didn't. 

As those involved in the accident struggle to heal and make sense of the tragedy, my heart goes out to the family of the elderly driver.  I have so many questions.  I wonder...did family members recognize the signs that their loved one should no longer be driving?  Did they try to intervene?  Was the driver aware of taking the wheel?  Is he aware now?  How will the driver and family cope with the legal and emotional burden of this accident?  What more can be done to prevent this kind of heartbreak?

https://www.msn.com/en-us/autos/news/multi-car-crash-injuries-four-people-including-an-infant/ar-AAHgwJn

https://seniordriving.aaa.com/resources-family-friends/conversations-about-driving/facts-research/

https://www.agingcare.com/Articles/signs-elder-unsafe-driver-153264.htm

Post #2

Elders in Politics: Perceptions of elders in the 2020 election

Brandy Orth Becker

While the perception and social utility of elders in the United States has always been a topic of discussion, throughout American history, there is a revamping of this discussion with the perspective of another elder ( 65+) as President of the United States of America.

Some common associations with the concept of getting older are memory loss, confusion, social dissonance, etc. All of these factors go to the sharpness of the mind and the ability to understand and process information. These factors are such that if relevant, any leader of a nation could be called into question.

Vice President Joe Biden has been the most clearly targeted in this 2020 election as far as ageism. Despite the fact that many who take the stage at a political debate have a tendency to jumble words, forget details, or misspeak, his errors are being connected automatically to senility and attributed to his age. After an inconsistent statement by Biden in the democratic presidential primary debate in Houston, co-candidate Julian Castro insinuated that Biden was unable to recall the statements that he had just made moments ago (See article). The internet in a quick response, picked up on the insinuations of Mr. Castro. As a result, any actual factual or political statements made by Biden in the debate were overshadowed by a discussion/parody of his age and capacity to lead as an elder.

At 72, Vice President Joe Biden is the oldest among the democratic candidates in the 2020 election. However, with his age comes a very impressive career in the political realm, making him one of the most politically experienced candidates among the bunch. It will be up to the American People in anticipation of, and at the polls, to weigh these facts, and to decide if age will in fact play a factor in disqualifying a presidential candidate.

See article: https://www.dailywire.com/news/51715/elder-abuse-julian-castro-shreds-joe-biden-over-eric-quintanar

Oscars 2019

The 2019 Oscars are behind us. Prior to the awards being announced, there was some attention given to the potential for recipients breaking the "age ceiling." The NYC Elder Abuse Center published this blog post, 2019 Oscar Watch: Actors Set to Break the Silver Ceiling. Noting the issues of ageism and the ability of computers to make folks look years younger, the post references a recent study showing lack of progress on inclusivity in film. "While adults 50 and older make up more than 30 percent of all moviegoers, the study found less than one-third of the highest-grossing films of 2017 featured a male 45 years of age or older at the time of theatrical release. Only five films featured a woman in the same age bracket, including Meryl Streep, Amy Poehler, Judi Dench, Halle Berry, and Frances McDormand."  The blog post lists various nominees who are older, and also points out that the documentary about Justice Ginsburg is also up for an award.

New Article: Age, Time & Discrimination

Professor Alexander A. Boni-Saenz at Chicago Kent has uploaded on SSRN his forthcoming article Age, Time & Discrimination.

Here is the abstract of his article

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.

The article will be published in vol 53 of the Ga. Law Review.

 

McKnight's Senior Living Commentary Addresses Abuse of "Part-Time" Shift Workers

As anyone who has a loved on in a care setting can probably attest, the individuals who work there have tough jobs. 

I was interested to read a McKnight's Senior Living commentary that focuses on a problem that may not be easy for the public to identify, the intentional use of "part-time" help to avoid an obligation to pay benefits for full time workers. 

The author describes one woman who works 30 hours per week for each of  two different employers -- that is 60 hours per week of hard work without benefits such as employer-sponsored health insurance.  John O'Connor writes in an important column (with a title that could perhaps, unfortunately, be misunderstood because of the reference to a Hispanic name), Senior Living Has Way Too Many Marias:

We often hear about the labor challenge in senior living. To be sure, it's very real. There is a lot of competition, and conditions are especially difficult these days. It's not easy to find and keep people willing to work for the wages that are available.

 

But if we are going to be honest, at least part of the problem has little to do with unforgiving external conditions and more to do with conditions some operators have decided to put in place.

 

To get more to the point, many communities simply refuse to hire full-time workers. From an economics standpoint, that is understandable. But it doesn't do much for the Marias of the world. And there are a lot more of them out there than many operators would like to admit.

 

Is Calling a 71-Year-Old Victim of a Violent Crime "Elderly" an Example of Ageism?

A column from the Manteca/Ripon [California] Bulletin on "The Impact of 'Elderly' & Other English Words," offers interesting perspectives on labels, especially in a time where high-profile name calling seems calculated to cause wide offense.  But what about more casual uses of labels?   

The column by Dennis Wyatt was sparked by news coverage about a vicious attack on a 71-year-old Sikh man in California's Bay Area.  Several of the coverage items referred to the victim as "elderly."  

In response to reader criticism of the label, Wyatt explains his perspective:  

Words can and do conjure up specific and different reactions and images with various people. Besides government definitions, laws and terminology that place people 65 and older under the umbrella of elder law there are other factors at play with language whether it is current trends, regional or cultural influences, or generational.

 

In the case of the vicious attack on the 71-year-old that those who knew him described him as frail and elderly, the word “elderly” confers the fact he’s not a “strapping” 71-year-old. I know of a few guys in their early 70s that the suspect in Monday’s attack would not have messed with. Not because they were simply healthier and would fight back but because they could have probably cleaned his clock.

 

The word “elderly” conveyed the correct image. The man was a vulnerable target and I’d venture to say the cowards that attacked him determined that to be the case. 

I do agree with [one reader's] observation that simply being 71 years old doesn’t make one elderly. At 62 I don’t feel old at all. In fact I can make a solid case I’m “younger” today in terms of health and what I can do physically than when I was 18.

In my elder law class, I sometimes begin the semester by asking students to give a definition of "elderly."  The results are often interesting.  

NYT: Same Sex Couple Challenge CCRC Admissions Policy as Discriminatory

From wedding cakes to retirement communities.  The dissonance here starts from the first mention of the name of the community, "Friendship Village."  From the New York Times's Paula Span, comes news of a challenge to an admissions policy as applied to an older, same sex couple seeking to move into a "faith-based" nonprofit Continuing Care Retirement Community or CCRC (also known as Life Plan Communities) near St. Louis:  

The community seemed eager to recruit them, too, offering a lower entrance fee if they signed an agreement promptly. So they paid a $2,000 deposit on a two-bedroom unit costing $235,000. They notified their homeowners association that they’d be putting their house in Shrewsbury, Mo., on the market and canceled a vacation because they’d be moving in 90 days. Ms. Walsh contacted a realtor and began packing.

 

Then came a call from the residence director, asking Ms. Walsh the nature of her relationship with Ms. Nance, 68, a retired professor.

 

Natives of the area, they’d been partners for nearly 40 years. Before the Supreme Court legalized same-sex marriages across the country, they’d had a harborside wedding in Provincetown, Mass.  “I said, ‘We’ve been married since 2009,’” Ms. Walsh replied. “She said, ‘I’m going to need to call you back.’”

 

Last month, the women brought suit in federal court, alleging sex discrimination in violation of the federal Fair Housing Act and the Missouri Human Rights Act.

For the full article, read "A Retirement Community Turned Away These Married Women."   

 

Genetic Information Nondiscrimination -- Should Consumer Protections Apply to Long-Term Care and Disability Insurance?

While following the most recent Tour de France cycling competition, I was intrigued by the spectrum of "products"advertised on broadcasts of the race stages --  or, alternatively, on the increasingly popular medium of podcasts by commentators such as Lance Armstrong on The Move.   On one end was the amusing use of bicycling footage from the new movie Mama Mia 2, spliced to make it appear actual TdF racers were just ahead of the maniacal cast. On the other end were advertisements for genetic testing via companies once better known for tracking family trees.   If your TdF hero (or anti-hero?) Lance Armstrong was advocating the benefits of better genetic knowledge via Helix, would those consumers consider the potential ripple effects of such knowledge?

Kaiser Health News recently pointed to key issues:   

The federal Genetic Information Nondiscrimination Act [of 2008] prohibits health insurers from asking for or using your genetic information to make decisions about whether to sell you health insurance or how much to charge. But those rules don’t apply to long-term-care, life or disability insurance.

 

When you apply for long-term-care insurance, the insurer may review your medical records and ask you questions about your health history and that of your family. It’s all part of the underwriting process to determine whether to offer you a policy and how much to charge.

 

If the insurer asks you whether you’ve undergone genetic testing, you generally have to disclose it, even if the testing was performed through a direct-to-consumer site like 23andMe, said Catherine Theroux, a spokeswoman for LIMRA, an insurance industry trade group.

In the current  political climate, it seems unlikely that Congress would tackle a wider application of mandatory nondiscrimination policies connected to risk factors for additional insurance policies.  Thus, if you are asked the questions, you have to tell the truth or be subject to disqualification from benefits if the company later learns, for example, you were aware you had genes associated with increased risk of dementia, but failed to disclose that fact in the application process, a factor relevant to underwriting.  Timing can matter, as also suggested in the Kaiser Health News Report:  

Some states provide extra consumer protections related to genetic testing and long-term-care insurance, said Sonia Mateu Suter, a law professor at George Washington University who specializes in genetics and the law. But most follow federal law.  If you get genetic testing after you have a policy, the results can’t affect your coverage.

For more, read How Genetic Tests Muddy Your Odds of Getting a Long-Term-Care Policy.

Webinar-Defending an Eviction Case for Older Tenants

The National Center on Law & Elder Rights is offering a free webinar on August 14, 2018 at 2 edt on  Legal Skills-Eviction Defense-Helping Older Tenants Remain at Home.

Here's a description of the webinar:

 

More older adults are choosing to rent, rather than purchase homes. Older tenants are particularly at risk of eviction due to unaffordable rent increases, or retaliation for complaints regarding code violations. Moreover, as adults age, landlords may be reluctant to make reasonable accommodations for tenants with disabilities.  Affordable housing is an important option for older renters, as it may offer reduced barriers and helpful amenities, but older adults may face other challenges preserving their tenancies in such housing.

This legal basics webcast will present a general overview of the tenants’ rights, examine one state’s process, and discuss defenses to eviction and other effective strategies to counter displacement.

To register, click here.

When Complexity in the Law Is the Biggest Barrier to Home Care

Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy  in 2012. 

Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers.  Judge Jane Magnus-Stinson observed,  in ruling in favor of Ms. Vaughn, that

The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.

The court traced, and criticized, the Byzantine nature of Medicaid waiver programs that fund portions of home care:

[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.

 

For the full opinion, with the judge admitting frustrations in finding a solution, see Vaughn v. Wernert, USDC, Southern District of Indiana, June 1, 2018.  The judge recognized that the court cannot simply order "return home" as an appropriate remedy, and instead set a "remedy hearing" for July 30 to explore all proposals, while also urging the parties to meet prior to that hearing in hopes of finding a mutually agreeable plan.  If any of our readers hear the result, please do share! Best wishes to Ms. Vaughn.

 

Age Discrimination Investigation

Our friend and frequent contributor, Naomi Cahn, recently sent us an item about an age discrimination in employment investigation at Intel. Silicon Valley's quieter discrimination fight, published in Axios at the end of last month, offers this quick take "[t]he disclosure that Intel is under investigation for age discrimination highlights what many see as an unspoken truism of the tech industry: it's a young man's game...Why it matters: Over the last year, much has been made of the industry’s maleness. But there’s been less of a spotlight on its preference for youth over experience." The Axios article offers these statistics:

By the numbers:

• Nearly 20% of those laid off by Intel in 2016 were 60 or over, according to the Oregonian.
• 7.8% were 55-59.
• 11.2% were under age 45.
• 5% were under 35.

Intel isn't alone, as the article notes, other companies have been investigated.  The takeway, according to the article,

Our thought bubble: While much of the age discrimination issue centers around worker bees vs. tech leaders, Silicon Valley also has a love affair with young founders. But as these companies move to the center of our economic and social existence, they need to tap the experience of workers and managers who've built institutions and weathered storms. Otherwise, no matter how smart they are, they'll keep making rookie mistakes.

• As for the industry's silence on the topic, it's a fair bet that many prefer to keep their head down and pass as younger rather than carry the mantle of being the voice for the older tech worker.

Side note: It's somewhat interesting that Intel finds itself in the crosshairs given that the company has been a leader among big tech firms in trying to diversify its ranks when it comes to race and gender. Intel, for its part, denies it has discriminated based on age or any other basis.

The Continuing "Problem" of Wheelchairs and Walkers in CCRCs and Assisted Living

Recently I was asked the question whether a CCRC could bar new residents from moving into independent living units, if they were using wheelchairs or walkers.  The question perplexes me, not just because of the legal implications under the Fair Housing Act and the Americans with Disabilities Act, and other federal laws, but because I do understand what was motivating the question, at least in part. It was a concern about "sustainability" of the community living model, and the need to attract younger, healthier residents. In a sense, it was an argument that "I don't mind, but others might."  

Paula Span, longtime columnist for the New York Times takes this issue to another venue  -- "assisted living" -- where some operators are attempting to ban those who use wheelchair, even temporarily.  The cited reason is that "we cannot accomodate a wheel-chair bound patient." She captures the dilemma well in her title, "Wheelchairs Prohibited In the Last Place You'd Expect."

Ultimately, I think we all need to be more comfortable with the fact that we do grow old and we do sometimes need assistance.  But, I understand, this is tough to accept.  

 

 

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

Md Court of Appeals Permits AG's "Improper Discharge" Suits Against Nursing Homes

As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes  -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals.  The Court tackles head-on the issue of who has the power to take action to address improper discharges.   

On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge."  Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits. 

In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring  a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.

The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland.  The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state.  As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."

There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see  State of Maryland v. Neiswanger Management Services LLC.. 

For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.

See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.