Elder Law Prof Blog

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

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

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

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

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

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

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

Stay tuned!  More reports to come!

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

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

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

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

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

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

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

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

 

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

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

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

Here was the full lineup for 2024 Symposium::

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Pennsylvania Law Schools' Elder Justice Consortium Hosts Free Webinar in Support of National Healthcare Decision Day

In support of the National Healthcare Decisions Day (annually on April 16), the Pennsylvania Law Schools' Elder Justice Consortium hosted a free webinar on April 9, 2024.  The hour-long webinar, soon to become available also as an on-demand recording, introduces a host of topics relevant to advance planning, whether for attorneys in assisting clients, or for the public, including introduction to the types of documents that individuals might want to adopt (such as a Healthcare Power of Attorney, a "Living Will," or a single document that combines both concepts), and what steps are important in making your wishes known to your chosen agent and supporting family members or healthcare providers.  

This free webinar was another "first" for the EJC Consortium -- providing an opportunity for  legal educators to reach audiences outside the doors of each of our law schools. 

Here is a short article authored by one of the attendees, Jonathan Biedler, a third-year law student at Penn State Dickinson Law, whose own post-graduation plans focus on estate planning and elder law.  Jonathan writes:

The EJC includes all the Pennsylvania law schools and was formed in 2022 at the call of the Pennsylvania Supreme Court. This was in response to the growing recognition of the need for advocacy on elder justice: neglect, abuse, decision-making, housing, etc., as the senior population of Pennsylvania grows. The goal is to combine the specialized experience of clinic professors, classroom professors, career services, deans, and students as members. The Webinar was in anticipation of National Healthcare Decision Day, which is on April 16th, the day after Tax Day. This date was suggested by attorney Nathan Kottkam in 2006 and was inspired by Benjamin Franklin’s famous statement that "in this world nothing can be said to be certain, except death and taxes" with the idea being to encourage people to also think about end-of-life planning and advance directives.

 

The EJC Webinar was moderated by Duquesne Kline Law Professor Kate Norton, the EJC’s first chair. Speakers were the EJC’s incoming Co-Chairs Grace Orsatti (Duquesne Kline Law) and Mary Catherine Scott (Widener Law Commonwealth), Brandon Corbalis of the SeniorLAW Center, Professor Spencer Rand of Temple Legal Aid Office, Professors Monica Harmon, a healthcare professional at Drexel's Dornsife Center for Neighborhood Partnerships and Professor Katherine Pearson, Penn State Dickinson Law, and Clinic Students Eliza Hens-Greco and Nick Piccirillo, both of  Duquesne Kline School of Law.

 

The speakers discussed the role of Elder Law. Elder Law, in a broad sense. focuses on those aged 60 or older and their family members, often including people with special needs.  Professor Pearson said that as opposed to estate planning’s focus on after death plans, Elder Law often emphasizes protecting and enabling the older client financially and personally in life. The speakers discussed the Office of Elder Justice in the Courts, set up by the Pennsylvania Supreme Court to advise the courts on how to prevent elder abuse, 

 

We heard an update on Act 61, a new Pennsylvania law that will be be implemented by courts by June of this year, with key features requiring appointment of counsel for those alleged to be in need of a guardianship, plus training and certification of all guardians, and a requirement for Pennsylvania courts to make specific determinations whether there are less restrictive alternatives than "guardianship" that would better serve the needs of an alleged incapacitated person.

 

Of course, given the theme of the program, the speakers also discussed the importance of advance healthcare directives, which are legal documents laying out a person's instructions relating to medical care and they recommended that people of all ages should have a document reflecting their goals. Such written documentation have recognition "under the law" and thus can support individual  autonomy and the ability to make decisions for ourselves. The speakers emphasized the importance of making sure your primary care and emergency doctors have access to -- and actually review -- the advance directive. Law students Eliza and Nick talked about their own experiences working with clients on advance directives and how at first it was scary and a bit sad to begin the conversation, until they shifted their mindset to think about the conversation as bringing peace and clarity for both the client and the client’s family. In closing remarks, Professor Monica Harmon, speaking from her experience in nursing and public health, emphasized that advance directives can be individualized and encouraged talking with the person you wish to name as decisionmaker to convey that nuances that may be hard to fully encode on the written page.

 Thank you, Jonathan, for this write-up!

 

 

Penn State Dickinson Law Supports the Search For Equity in Aging

On February 16, 2024, my law school, Penn State Dickinson Law, hosted its monthly session on Race and Equal Protection of the Law (REPL) and this time our focus was on the search for equity in aging.

One of the first speakers was Sahar Takshi, whose work at Justice in Aging focuses on implementing the organization's strategic initiatives on advancing equity.   The initiative centers advocacy on issues that directly address systemic inequities faced by:

• Older adults of color,
• Older women,
• LGBTQ+ older adults,
• Older adults with disabilities, and
• Older adults who are immigrants or who have limited English proficiency.

Sahar offered definitions of core terms, including cultural competence and cultural humility, implicit bias, and a concept that I'm hearing more and more about, "vicarious trauma." I had thought of this as an emerging concern for health and human services providers, who may be repeatedly exposed to clients' and patients' traumas, with the potential for unacknowledged negative impacts on their ability as "helpers" to cope, or to be able to provide consistent levels of service.  Sahar reminded us that lawyers may be affected in this way,  and perhaps may even be subject to greater self denial.  (P.S. I learned our law school is offering a course on this topic in the Fall of 2024!). 

Justice in Aging also has teamed with Community Legal Services of Philadelphia (CLS) on a funded out-reach initiative to older adults in the Philadelphia region.  Part of the project focused on how the concept of racial justice needs to consider the importance of Medicaid as the largest public payer for long-term services and supports.  One challenge is that receiving Medicaid may hit low income families in disproportionate ways, as the state's "recovery program" may target their only asset -- their home.  Presenter Pam Walz,  a supervising attorney at CLS in the Health and Independence unit, explained the needs for families of color to be able to access sound legal advice in order to avoid unfair Medicaid Estate Recovery impacts.  

One of the rising stars at the REPL program was Olivia Robbins who is a paralegal in the Homeownership and Consumer Rights Unit at CLS in Philadelphia.  Olivia provided a fascinating, detailed history of concerns about "tangled titles" and how there is a huge need for appropriate estate planning support to avoid this phenomenon.  My 1L students were definitely asking for more information on this concern.

New Jersey Elder Law specialist Crystal Edwards, CELA, helped to introduce the day's program for Penn State Dickinson Law, adding her words of support for stronger outreach to clients of color and the importance of attorneys of color for planning services.  Crystal reminds us that "help" for older adults and their families comes from private attorneys too; indeed, Friday's program was a holistic overview of public, private, local and national networks for equity in aging, highlighting  the significance of race, gender, immigration status, and orientation when bias factors include "growing older." 

I provided an example from recent news stories about the intersection of "bias" impacting quality of care for  older people who are also persons of color.  The publication Nature recently published a comprehensive review of how "fingertip oxygen sensors," that are a tool for catching "low" oxygen levels for people in nursing homes and which were especially during the height of the COVID pandemic, can fail to give accurate readings on dark skin. As the article reports, "Studies --some decades old -- have established that the devices . . . can overestimate the amount of oxygen in the blood of people with dark skin which could lead health professionals to delay or decide against treatment."  Penn State Dickinson Law Professor Sarah Gerke commented on the troubling history in the Nature publication.  

Visiting Professor Allison Lintal presented our students with important information to close the REPL session about restrictive housing laws or policies at a state or local level that fail to support co-housing, a potentially vital need for older people who can benefit from companionship and a team approach to financial support or care.   

My deep appreciation to all of the speakers at our program, helping to introduce our first-year law students to the "search for equity in aging." 

An Analysis of States with Best Elder-Abuse Protections

Recently I was one of several academics invited to provide short commentary on state efforts to provide older adults and their families with protection against elder abuse.  I was interested to read the final on-line article, which offers a comparative approach, analyzing 50 state systems plus Washington D.C.,  for reporting, investigating and taking action where abuse of older adults is suspected or reported.  The site used what are described as "16 key indicators of elder abuse protection in three overall categories."   

Here is a ink to the article, "States with the Best Elder-Abuse Protections."

The article is by Adam McCann, WalletHub Financial Writer, and is published online on December 13, 2023.  There are several drop-down menus for additional information, including the interviews with academics speaking from a variety of perspectives, including  Sharona Hoffman, Professor of Law and Bioethics at Case Western Reserve University School of Law.  

 

NYT's Ethicist: "My Friend is Trapped in a Nursing Home. What Can I Do?"

The New York Times runs a regular column called The Ethicist.  It poses intriguing problems and the most recent one is definitely relevant to families, older individuals (and potentially anyone with a disability) and elder law attorneys.  Because the analysis is behind a paywall for "subscribers only," I am reluctant to say too much here  But I can say that the question of what happens when someone with "reduced" cognitiion becomes entangled in a well-meaning but still demeaning care setting, makes the need for experienced legal assistance exceptionally clear. This particular essay would make a great problem for  a student seminar!  

See My Friend Is Trapped in a Nursing Home:   What Can I Do?  presented by columnist Kwame Anthony Appiah, in the New York Times online edition published July 28, 2023.  

Arizona Feature: "Arizona Seniors At Risk of Harm"

Appearing on the front page of the Sunday edition of the Arizona Republic (5.21.23),  the first paragraphs of an extended feature article point to the potential for harm to residents and the consequences of staff shortages or inattention at Arizona facilicities caring for residents with dementia. Two women in their 90s  are residents of an elegantly appointed assisted living facility-- but as the article begins they are covered in blood -- and the investigation of what happened there is hampered by the inability of anyone to give clear explanations. 

The feature, based on the newspaper's review of "thousands of pages of police and state regulatory reports," offers multiple reasons for such injuries in "senior living" facilities, including a lack of clear reporting rules and the absence of investigation by state agencies, especially for facilities licsenced for "assisted living" as opposed to "nursing home" care.  From the  feature:

In memory care units, anything can become a weapon -- toilet plungers, shoehorns, electric razors, TV remotes, metal trash grabbers and walking canes. Hundreds of vulnerable seniors, particularly those with dementia, contend with violence at the end of their lives in the very places that promise to keep them safe. 

 

Shortages of staff-- brought on by companies looking to maximize profits or stave off financial losses -- lead to more harm. Assisted living facilities can keep resident clashes underwraps [in Arizona] because regulartors don't make facilities report incidents to their state licensing agency.  Federally regulated nursing homes have to report but little attention is paid to the problem.

 

The Arizona Republic combed through thousands of pages of policce and state regulatory reports to find more than 200 clashes at senior living facilities from mid-2019 to mid-2022. Residents punched, hit, pushed, kicked, poked scratched, bit, elbowed or spat on other residents or employees.

Experts consulted by the Arizona Republic noted that one "key [to reducing problems] is tailoring a [resident's] care plan to each resident's needs, equipped with activities that bring their lives a sense of purpose."  Further, "[a]ssisted living facilities commonly get in trouble for having inadequate, delayed or out-of-date plans for residents that outline their need or for failing to follow those plans."

The article cautions that if a problem is not tracked, "it doesn't exist":

The Arizona Department of Health Services licenses facilities and is responsible for investigating complaints but assisted living centers don't have to report nonfatal injuries to the agency.  

 

That's not normal.  Most states require facilities to report to their licensing agency when residents get hurt, according to The Republic's review of state laws.

The feature suggests that "Arizona lawmakers and regulators have prioritized the needs of assisted living and nursing home companies over their residents," comparizing Arizona to  "[a]t least 17 states [that] require assisted living facilities to get inspected about once a year, with a few even requiring two inspections per year. " 

For the full Arizona Republic feature published in its print version on May 21, 2023, look for  "Arizona seniors at risk of harm: Facilities experiencing staff shortage, residents with dementia enable violence," by reporters Caitlin McGlade, Melina Walling and Sahana Jayaraman. The extended Sunday feature appears to follow several shorter articles available online in May from the same reporting team. 

Ohio Appellate Court Confirms that Agent Not "Personally Liable" for Costs of Nursing Home Care

In one of the earliest articles I wrote on familiy member liability under nursing home contracts, I cautioned that federal law prohibits nursing homes from requiring "guarantees" of payment by family members.  Any family member who is asked to sign "on behalf" of a loved one should carefully consider the role he or she is undertaking, especially if the only role acceptable  and affordable for that family member is "agent."  See "The Responsible Thing to Do About 'Responsible Party' Provisions in Nursing Home Agreements," published in 2004 in the Unversity of Michigan Journal of Law Reform.   

On May 1, 2023, an appellate court in Ohio cited this article when concluding that in the case before it, the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care.  The daughter appears to have properly cooperated or assisted in the original Medicaid application.  Further, the daughter gave authority to the nursing home to debit the bank account where her mother's SS checks were deposited each month, in order to pay itself the "patient pay portion" of the monthly allocation for costs of care when a patient has low income but is otherwise eligible for Medicaid.  Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000, a resource limit that can trigger disruption of  Medicaid benefits.  There was still another party that could be faulted for what appears to have been an unplanned "excess resource" situation.  The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminaating Medicaid.   See National Church Residences First Community Village v. Kessler, 2023 WL 3162188  (Ohio Ct. App. 2023).  

Bottom line?  Family members or others attempting to help an incapacitated person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligability for Medicaid.  Further, clear, direct communications between the agent, the facility and state agencies are important when seeking to facilitate prompt, proper payments.  

Overwhelmed family members should not be scapegoats, even (especially?) when overwhelmed state agencies and facility billing offices are themselves missing opportunities to keep benefit payments flowing properly.  

Undocumented Workers in the Caregiving World

Los Angeles Times journalist Steve Lopez has been writing recently on the financial costs of long-term care, whether in the home or a "senior living" setting.  It is part of his series of  "Golden State" columns on California's aging population.   Today, however, he has reversed the lens, and talks about the impact of the need for care on low-wage workers.  He writes: 

I’ve been in homes where the caregivers are U.S. citizens with decent wages and benefits, and I’ve been in homes where the workers are undocumented and paid less than the minimum wage  ($16.04  an hour in the city of Los Angeles)  in cash. It’s a wink-and-nod system, much like farm labor, in which cheap labor is prized over any other consideration.

 

“It’s very much a legacy of slavery and a history in this country of not valuing the work done by … people of color,” said attorney Yvonne Medrano, who heads the employee rights program at Bet Tzedek Legal Services.

 

Several weeks ago I reached out to the the Pilipino Workers Center, a Los Angeles nonprofit that has been educating domestic workers on their rights and leading a fight against a system in which labor laws are often ignored and workers — many of them old enough to be receiving elder care themselves — are cheated and exploited.

Aquilina Soriano Versoza, the center’s director, said research indicates a majority of clients appreciate the care they get and would be willing to pay more for it, but many can’t afford to.

For  a more complete picture, read They Take Care of Aging Adults, Live in Cramped Quarters, and Make Less than MInimum Wage from the Los Angeles Times.

Limited Nursing Home Beds Also Impacting Hospital Availability

On December 7, NPR had a short segment during Morning Edition describing the impact of lack of staffing -- and therefore lack of "beds" --  in nursing homes and rehabilitation care facilities, which in turn means hospitals are stuck keeping the patients. Further, Medicaid often won't pay for hospital care for individuals who "only" need nursing home care. 

Listen to the 3-minute segment that uses hospitals in Vermont as the focus:  Limited Nursing Home Beds Force Hospitals to Keep Patients Longer.

The story hints at several subtle issues, including Medicaid funding priorities, especially as Medicaid involves joint federal/state funding, and how health care handles "inability to pay" by residents.   This last semester I've taught a stand alone course on Nonprofit Organizations Law and students are often surprised to learn that the single largest -- and highest income -- segment of the nonprofit world is health care, especially hospital-based health care.   Students ask how a "charity" accounts for earnings and losses -- and we discuss the fact that no organization, nonprofit or for profit, can afford to operate very long without adequate revenues to stay solvent.    The NPR story reflects a theme that my course often raises -- what does it mean to be "charitable"?  

USA's Fastest-Growing Demographic Group? Consider the Implications of People Age 50+ Who Live Alone

The New York Times Sunday edition includes a feature article about a trend, "more older Americans living by themselves than ever before."  

Using graphs, interviews and research results, the article makes a clear argument, that "'while many people in their 50s and 60s thrive living solo, research is unequivocal that people aging alone experience worse physical and mental health outcomes and shorter life spans." 

Plus, the article implies that evidence that shows a growing share of older adults (age 55 plus) do not have children, means there is a public policy concern "about how elder care will be managed in the coming decades." 

For me, this article crystalizes two legal concepts I write about frequently:  "filial support" laws that can be used to compel adult children to care for or maintain their elders, and "continuing care retirement communities," that permit people with sufficient -- make that significantly sufficient -- financial resources to plan for how their care needs may be handled in a planned community.  

Law professors can probably use the article to stimulate waves of student projects about personal and collective responsibilities in American societies and beyond.  

For more, see  "As Gen X and Boomers Age, They Confront Living Alone," by Dana Goldstein and Robert Gebeloff. 

 

Loss of the Ability to Evaluate Risk vs "Winning the Sweepstakes"

When I was a child, my grandfather had an ongoing relationship with Readers' Digest.  Not just their magazine or their condensed books, but with the company itself. He was always convinced he had won their latest sweepstakes and his big-dollar prize was just around the corner.  It was a bit of a family legend.  

Recently an older friend, who had celebrated a 90th birthday a few months back, called to ask for help in filling out forms for the Publishers Clearing House sweepstakes.  Over the years my friend had purchased various items from PCH, including a set of solar lights that never worked properly.   The odds of actually "winning" the PCH sweepstakes are astronomically high.  My friend thought buying something would increase the odds of winning no matter how often I explained over the years that was not true.  Sometimes new "stuff" would appear in the mail, along with a corresponding bill for the "order."  It was hard to know whether my friend had actually ordered the items.

This time, my friend was thrilled to explain the long-awaited victory was almost here -- as the latest mailing "guaranteed" the check would be arriving by mail and all that was needed was timely confirmation by return mail of a willingness to accept the prize.  Two envelopes were provided to help in "claiming" the victory.  

I walked patiently through the colorful documents with my friend, pointing out all my examples of clever language.   I showed my friend a copy of a case, Harris v.  Publishers Clearing House, an unofficially reported  federal decision from 2016, that described another person who also thought he had won for the exact same reasons as my friend. The prize never came. He was suing -- without the benefit of an attorney --  for breach of contract, fraud, and alleged violations of Deceptive Mail Prevention and Enforcement Act, 39 U.S.C. Section 2001 et seq.  But the judge ruled against him, dismissing the case with prejudice while explaining the language in the letters "merely informed the plaintiff that he had a chance to win. . . . "  

My friend seemed to understand what I was saying.  My friend asked my opinion -- "what should we do?"  I suggested we tear up the letters and throw them in the trash.  My friend put the documents -- untorn -- in the waste can.  We talked about the fact that continuing to participate with this company was wasting money, and was also an example of "feeding the troll," encouraging the company to keep sending those "too-good-to-be-true" letters to other people.   We  ended our discussion with a good hug.

The next morning I stopped by to drop off newspapers and a fresh donut.  As I waited for my friend, I saw the top of two "official" envelopes addressed to Publishers Clearing House peeking out of the top of the home's mail box for pick up -- with fresh stamps.   I couldn't help but sigh.  

Here is a link to a science-based discussion about early assessment of cognitive impairment, and the importance of histories provided by a reliable informant or care partner for diagnostic assessment.  Victimization in scams is one of several behavioral examples listed in the article that can point to changes in cognition, associated with the loss of the ability to evaluate risk or odds of winning. 

Isn't it sad that it might be easier to diagnose cognitive impairment than to get a ruling finding deceptive trade practices?  

Justice Department Expands Strike Force to Protect Older Americans from Fraud

The U.S. Justice Department issued a press release yesterday, announcing the expansion of its Transnational Elder Fraud Strike Force.  The Strike Force was organized in 2019, involving the Justice Department's Consumer Protection Bureau,  U.S. Attorneys Offices, the FBI, Homeland Security, and -- I was interested to see -- the United States Postal Inspection Service

I've actually worked with the Postal Inspector on an elder fraud case.   A woman in her 90s was mailing an unusually fat envelope and asked a friend to give her a ride to a local branch of the post office.  The friend, knowing the woman was quite frail when walking unassisted, offered to get the postage, or to accompany her, but the older woman, who the friend thought seemed unsure of herself, declined.  The friend thought about this, was alerted by what struck her as unusual behavior, and called the woman's daughter and explained what had just  happened. 

The daughter had dismissed a home caregiver recently after learning the caregiver was asking her mother for -- and receiving --  two  or more "pay checks" per week, as well as asking for additional cash that seemed to disappear in mysterious ways.  The daughter went to the post office with a copy of a certified Power of Attorney, granted to her by her mother several years before she was diagnosed with multiple conditions, including cognitive issues, following a stroke.  In fact the reason the caregiver had been hired was precisely because the mother was vulnerable and sometimes confused. 

The Post Office at first seemed to be reluctant to take action, but the daughter was able to describe the envelope and also to provide the name of the former employee who had already been fully paid for his work, and had signed a receipt to that effect. The Post Office's worker agreed to search, but when the daughter departed, it seemed unlikely any action would be taken.  That is, it seemed unlikely until the next day, when a representative of the Postal Inspector set up an appointment.  Having identified and been given the daughter/agent's permission to open the envelope, the federal authorities found several hundred dollars in the envelope that was, indeed, addressed to the former worker.  The officers interviewed the mother and then went to see the suspect, who claimed it was merely an additional paycheck that was "owed."  He  claimed the mother was fully supportive of giving him cash, but he was unable to explain the receipt he'd signed, the burner phones he had used to call the woman, nor the many "payments" he'd received in the last 60 days, payments that the daughter had since documented as more than tripling his agreed wage rate during that period. 

I'm the daughter; my 90+ mother was the person defrauded.  (She has since passed away, so I feel more able to tell this story.)  I learned the Postal Service already understood such a fact pattern very well.  Even at that time, several years ago, the official investigating the facts told us that similar transactions happened all too often.  It is good to see, with this latest press release, that the U.S. Justice Department is coordinating authorities on enhanced fraud prevention and recovery efforts in support of elder justice.  

My thanks to Associate Dean for Academic Affairs Amy Gaudion at Penn State Dickinson Law, who shared the Justice Department notice with me, and whose own research focuses on national security and privacy issues.  

Widener Univ. Commonwealth Law School's Clinical Students to Serve as Monitors in Pennsylvania Guardianship Program

Mary Catherine Scott, Director of the Central Pennsylvania Law Clinic at Widener University Commonwealth Campus, has recently partnered with Dauphin County Orphans' Court in Harrisburg, Pennsylvania to expand her clinical students' opportunities for service. Law students will now have roles as monitors in guardianship cases, seeking to maximize the interests of protected persons.  The Pro Bono Guardianship Monitoring Program was begun in central Pennsylvania by the Honorable Todd Hoover, and is now overseen by Dauphin County Court of Common Pleas Judge Jeffrey Engle, involving as many as 400 active cases.  The monitor program is another component of the Pennsylvania courts' enhanced protections for older persons and other persons found to be in need of certain assistance.  Pennsylvania also has a state-wide Guardianship Tracking System. 

This is another example of expanding services to older adults in Pennsylvania, an outgrowth of the Elder Justice Consortium, supported by representatives of all nine law schools in Pennsylvania.    

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.   

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.  

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.