Wednesday, January 8, 2020
For the last few years, I've found myself with conflicts during semester breaks that interfered with attending the AALS Annual Meeting. So I was especially happy this year to attend and catch up with long-time and new friends, especially those who work in fields relevant to elder law.
The annual meeting kicked off for me with a Joint Session hosted by the Sections on Aging and the the Law, Civil Rights, Family & Juvenile Law, Employee Benefits & Executive Compensation, and Immigration Law. The collaborative event offered lots of interesting "Emerging Issues in Elder Law," with speakers including:
Mark Bauer, Stetson Law, who spoke about recent enforcement efforts to combat elder exploitation, and pointed to a lingering weakness associated with banks that make SARS reports that never go beyond the regulatory body, and therefore never reach first responders, such as local police. He talked about support for a state-wide effort in Florida to improve police reports to make it easier to identify abusers who target older persons. He also called for better record-keeping for sales of gift cards, as these have become the number 1 method that telephone scammers get older adults to send them money.
Wendy Parmet, Northeastern University School of Law, who focused on the impact of immigration laws and policies on the health of older adults, including attempts by the current administration to change the definition of "public charge" to include anyone who could receive any public benefits whatsoever, thereby expanding the the pool of inadmissible immigrants and further restricting eligibility for legal permanent residency. She traced the impacts of such policies on older adults once eligible for family reunification, on older citizens overall, and on a nation that once took pride in providing help to immigrants who were "tired and poor."
Jalila Jefferson-Bullock, Duquesne Law, who talked about how some states are not applying sentencing reforms to elderly offenders, even though such inmates statistically are at the least risk of reoffending and, at 19% of the total prison population, are often generating care costs that are unsustainable. I learned, sadly, that my own state of Pennsylvania is one of the states that is not yet making significant progress on sentencing reforms for older adults.
Rachel Lopez, Drexel University Law, who is director of Drexel's Stern Community Lawyering Clinic, carried forward the theme of needed prison reforms for older inmates, reporting the latest events that follow the Graterford Think Tank Prison Project in Pennsylvania, and making the sobering observation that the most effective argument may not be one that sounds in human rights or human dignity, but the demonstration that return to the community for aging and ill residents saves the state money.
Naomi Cahn, George Washington Law, who is also the incoming chair for the AALS Section on Law and Aging, presented facts and figures on "gray divorce," especially with respect to financial impacts on women. She urged a de-coupling of Social Security benefits from marriage (or perhaps marriage longevity requirements), arguing that Social Security credits should be available for time spent as caregivers.
Browne Lewis, Cleveland-Marshall College of Law, pointed to the emerging issue of "reproductive rights" for older individuals, identifying jurisdictions that restrict women's access to assisted reproductive technologies (ART) including placing age or time restrictions on use of banked or stored eggs.
For faculty members who would like to be part of next year's Law and Aging program at the 2021 AALS Annual meeting in San Francisco, contact Naomi Cahn with your topics and interest.
January 8, 2020 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, November 10, 2019
Everyone agrees that we need a stronger national commitment to "retirement security" in America. But what, exactly does that mean? This topic will be a central focus for discussion during a Public Forum hosted at Penn State's Dickinson Law on Tuesday, November 12, 2019. The keynote speaker is former Maryland Lt. Governor Kathleen Kennedy Townsend, who is currently the Director of Retirement Security at the Economic Policy Institute, as well as serving as a research professor at Georgetown University.
Along those very lines, last week I read a news article about the latest stalemate at the federal level on specific legislation that could promote better retirement savings. The measure in question is H.R. 1994, the "Setting Every Community Up for Retirement Enhancement" Act -- and of course that name was chosen to reinforce the goal of SECURE futures. The bill passed the House with strong, bipartisan backing in May 2019, but is now mired in the Senate. Excerpts from The Hill describe the roadblocks to passage:
GOP senators on Thursday attempted to bring a House-passed retirement savings bill to the Senate floor with votes on a limited number of amendments, but the effort was rejected by Democrats.
The Republican effort and Democrats' rejection highlighted how, despite widespread bipartisan support and backing from industry groups, it is still unclear when the retirement bill will be enacted.
The House in May in a nearly unanimous vote approved the bill, known as the SECURE Act. The bill includes a host of provisions aimed at making it easier for businesses to offer retirement plans and for people to save for retirement. It also reverses a provision in the 2017 Republican tax-cut law that inadvertently raised taxes on military survivor benefits paid to children....
Sen. Patty Murray (D-Wash.) objected to the Republican request, saying that Senate Democrats want the chamber to pass the House-passed bill as-is, without any amendments.
“We have a few Republican senators who want to sidetrack it with last-minute amendments, including proposals that are not in the interest of working families and will kill any chance this bill has of becoming law,” she said.
Murray asked Toomey to modify his request in order to allow the bill to pass as-is, but Toomey said he wouldn’t modify his request.
For another perspective, see "What is the SECURE Act? How Could It Affect Your Future?"
Wednesday, October 30, 2019
The D.C. Bar recently released a new ethics opinion addressing the obligations when an attorney becomes impaired. Ethics Opinion 377 Duties When a Lawyer is Impaired starts by explaining
The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervisory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.1 A related question involves the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.
This Opinion deals only with mental impairment, which may be a chronic or temporary condition arising out of or related to age, substance abuse, a physical or mental health condition or other circumstance affecting the lawyer. This Opinion supplements the guidance contained in Legal Ethics Opinion 246, with a specific focus on the issue of impaired lawyers, whose conduct may or may not trigger mandatory reporting obligations under the Rules, as discussed herein. This Opinion also relies, in part, upon ABA Committee on Ethics and Professional Responsibility Formal Opinion 03-429 (2003).
The impairment of a lawyer may fluctuate over time, regardless of its cause. However, if a lawyer’s periods of impairment are on-going or have a likelihood of recurrence, then partners, or other lawyers with managerial or supervisory authority may have to conclude that the lawyer’s ability to represent clients is materially impaired.
A range of ethics rules are implicated, including those setting forth the duties owed by lawyers to clients and the profession, and those addressing issues of supervising lawyers and non-lawyer employees. At the outset, and as discussed within this opinion, the Committee recognizes that there are tensions between ethical duties that arise under the D.C. Rules of Professional Conduct (the “Rules”) and requirements or prohibitions that may exist under the substantive law, specifically with respect to employee privacy and other rights. Lawyers and law firms must be cognizant of the legal landscape in which these difficult issues occur.
Mental impairment may lead to an inability to competently represent a client as required by Rule 1.1, to complete tasks in a diligent and zealous manner as required by Rule 1.3, and to communicate with clients about their representation as required by Rule 1.4.
Rule 5.1 requires partners or other lawyers with managerial or supervisory authority to make reasonable efforts to ensure that all lawyers and those under their supervision comply with the applicable Rules and to ensure that their law firm or government agency has in effect measures giving reasonable assurance that all lawyers in the firm or agency conform to the Rules. These provisions require managerial or supervisory lawyers who reasonably believe or know that a lawyer is impaired to closely supervise the conduct of the impaired lawyer because of the risk of violations of the Rules and resulting harm to clients. Rule 5.2 may also apply to subordinate lawyers if they know of and ratify the conduct of the impaired lawyer.
Rule 8.3 requires a lawyer, regardless of managerial or supervisory authority, to report an impaired lawyer to the appropriate professional authorities including, but not limited to, the District of Columbia Office of Disciplinary Counsel,if the impaired lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law, unless such disclosure would be prohibited under the duty of confidentiality owed to clients under Rule 1.6 or other law.... Further, if the firm or government agency removes the impaired lawyer from a matter, it may have an obligation under Rule 1.4 to discuss with the client the change in staffing on the matter. The duty to discuss removal of government lawyers from a matter may be different because of government policies or regulations.
If the impaired lawyer resigns, is removed or otherwise leaves the law firm, the firm may have additional disclosure obligations under Rule 1.4 to clients who are considering whether to remain with the firm or to transfer their representation to the departing lawyer. However, the firm should be cautious to limit any disclosures to necessary information permissible to disclose under applicable law. The obligation to report misconduct under Rule 8.3 is not eliminated if the impaired lawyer leaves the firm.
Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment. This purpose should not be forgotten as lawyers, firms and agencies seek to comply with the ethical mandates discussed herein. (citations omitted)
The lengthy discussion examines the duties of others who supervise or have some managerial duties, as well as the duty to report. It concludes that:
In circumstances where a law firm or government agency addresses the issue of an impaired lawyer, there is a crucial balancing between protecting the interests of the clients and properly discharging the law firm or government agency’s obligations to protect the privacy of the lawyer under substantive law. Having appropriate policies and procedures designed to encourage reporting and to address issues of impairment within the law firm or government agency are important steps in ensuring that an impaired lawyer does not violate the Rules and that partners, and managerial and supervisory lawyers properly discharge their duties under the Rules.
Monday, September 9, 2019
Recently I had the enjoyable experience of being interviewed by Jon Wainwright, Project Manager for the Capital Center for Law and Policy at McGeorge School of Law, University of the Pacific. He asks great questions. His podcast project, CAP-Impact, is a well-developed resource to foster nonpartisan understanding of law and policy, offering a wide array of discussion topics, ranging from the role of lobbyists to science-based support for law reform.
The interview focused on the Guardian Education Project I'm working on currently with community stakeholders, law students (Summer 2019 Team pictured here) and faculty, with financial support from Penn State University. This project is an outgrowth of the Pennsylvania Supreme Court's Elder Law Task Force that recommended changes in procedures and policies governing adult guardianships in Pennsylvania, including better education for new guardians.
For the actual podcast -- about 25 minutes in length -- go to Episode 53: Data Driven Best Practices for Protecting the Elderly with Professor Katherine Pearson.
Don't forget to "like" it -- or whatever is appropriate as support for Jon's podcast project. As he amusingly pointed out, "elder law" isn't usually considered to be a sexy area for researchers, but as he demonstrates, what happens with older adults or others in potential risk of neglect or exploitation, is important!
Thursday, August 22, 2019
I suspect every elder law attorney has experienced the Friday Syndrome, where an individual calls the office to seek an emergency appointment because he or she has flown in to visit parents and has discovered new chaos. Perhaps it is a parent who is much more ill than anyone was letting on during phone calls. Perhaps it is discovering a huge pile of unpaid bills with no explanation for why they are overdue. Perhaps it is because the parents have said -- finally -- we need to make a decision and we want to make it today.
There are many variations on the Friday Syndrome, and frequently they involve a common human trait, procrastination, or as my fifth grade teacher called it, "The Scarlett O'Hara Syndrome." I didn't understand what she meant at the time, having not yet seen Gone with the Wind with Scarlett's classic last line, "After all, tomorrow is another day." But I did eventually figure out that my teacher was referring, in less than favorable terms, to my personal approach to homework assignments!
A friend who I often run into during early morning swims, attorney and financial planning advisor Alvin Blitz, shared with me a variation on the theme with his recent column on "Taking Control of Your Destiny." He recounts lessons from his 20 years of travel on behalf of Masonic Villages, as he works with individuals and couples who are thinking about a move to a continuing care retirement community (CCRC). He starts with the premise that while change is a difficult word to swallow, "resisting change usually results in a bad outcome." He describes two scenarios involving couples facing decisions about whether to stay in their own homes.
In the successful scenario, the couple began their reckoning with age while still in their early 70s, making a preliminary decision to downsize and live in a townhouse in a 55 plus retirement community, spending many years enjoying their neighbors and participating in activities geared to their stage in life. "As time went on, the husband was diagnosed with dementia, which required them to make another hard decision," reports Alvin. Eventually they decided that they needed a place where the husband's mental status could be accommodated and the wife would be able to stay active and supported in her new roles with her husband. In the CCRC, they were able to enjoy a "balance of independence and quality of life together while their health problems are addressed, without needing to rely on other individuals to make life decisions for them."
In the less successful scenario, the couple tried to stick in out in their 1950's castle. "Finally, the inevitable happened. the husband had a debilitating stroke. Family members from afar rallied to help, but time took its toll. The wife had medical problems and landed in the hospital. Decisions on care and where to live became limited and were thrust upon them by their circumstances."
Alvin reminds us that making affirmative decisions about housing and care as you age can lead to a much "softer landing" than an alternative that depends on happenstance. He also explains, helpfully, what it might mean to live in a CCRC where there is a clear mission, such as the fraternal mission at Masonic Villages where members of the Masonic organizations (including Eastern Star) can receive continuing compassionate care, even if the individual no longer has assets to pay for care.
For more, read Alvin Blitz' August 2019 article, Taking Control of Your Destiny, from his newsletter, appropriately called "The Blitz."
Thursday, August 15, 2019
The Wall Street Journal and other news sources are reporting on a financial research report released publicly today by an accounting expert -- the one who blew the whistle on the Bernie Madoff scheme -- and his investigation team, that alleges massive inaccuracies and fraudulent filings by General Electric Company. GE officials are fighting back, alleging market manipulation is the motive behind the report. From a Wall Street Journal article on Thursday, it seems GE's liability for losses on its long-term care insurance products is a key focus:
The Markopolos group includes John McPherson, co-founder of MMS Advisors, forensic accountants specializing in the insurance industry. The group worked for seven months to analyze GE’s accounting.
Mr. Markopolos said he is going public with the report now because the group just finished its work. It had been working on another insurance case when GE’s insurance problems caught its eye, he said.
The group claims GE’s long-term-care insurance holdings are a bigger liability than the company is letting on. The report estimates GE will need to boost its insurance reserves by $18.5 billion in cash and take a $10.5 billion charge because of an accounting change required by 2021.
Those figures are on top of a $15 billion reserve boost already taken by GE over seven years to cover its exposure to long-term-care policies, which cover expenses like nursing homes and assisted living. The policies have proved to be a problem for many insurers. The companies drastically underestimated the number of future claims and how long people would draw on the coverage before dying.
“We believe that our current reserves are well-supported for our portfolio characteristics, and we undertake rigorous reserve adequacy testing every year,” GE said in its press release.
On the one hand, as an occasional observer of LTC industry woes, it seems hard for me to believe that at this point any company would try to hide or downplay the high-profile losses that the LTC industry has encountered for more than 10 years. Nonetheless, the whistleblower team's allegations are pretty bold, especially set against the market instability overall this week.
Wednesday, August 7, 2019
Coordinating Treatment, Including Cancer Treatment, for Patients Represented by Guardians or Other Agents
This summer I've been working with a dynamic interdisciplinary team to create a series of online educational modules for guardians and other agents working with adults in Pennsylvania. Our shorthand name for the 18-month endeavor is the Pennsylvania Guardian Education Project and it is funded by an important Penn State Strategic Initiative Grant. The work has been daunting at times, but always interesting.
We have law students researching and writing detailed outlines on Pennsylvania law and national best practice standards for guardians, and then refining those outlines to create scripts under the guidance of Penn State experts in health care, behavioral sciences and online adult education. We are also filming interview segments featuring judges, guardians (both lay guardians and certified professionals), social workers, lawyers, advocates and ombudsmen. Last week we were in the greater Philadelphia area while filming (that's Ben Franklin on the top of City Hall in the background, with filming crew Mimi Miller, Christoper Riley, and Luke Gibson, all Dickinson Law students).
Our hope is that most of the camera work will be completed before Dickinson Law classes resume later this month, but the additional hard work of editing and crafting the interactive units for publication will continue over the fall.
Our lead research assistant, Mimi Miller (Dickinson Law, '21) has pre-law experience as a Certified Nursing Assistant (CNA) working with older adults, and thus has uniquely practical insights into the challenges for families when coordinating care for impaired loved ones. Her work with health care members of the grant team, including Dr. Eugene Lengerich, a member of Penn State's Cancer Institute and on the faculty of Penn State's Public Health Sciences program, led to an invitation to "flip" our educational efforts, by making a presentation to health care researchers and clinicians about what guardians are -- and aren't -- permitted to do when making health care decisions for their clients. The first step in this new collaboration occurred yesterday at Penn State's Cancer Institute Retreat, where Mimi was one of more than 60 presenters and the only law student to present. Congratulations, Mimi!
August 7, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)
Friday, July 26, 2019
The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19. One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law. This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices. She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships. That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships. As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court. I'll write more about these issues and my project soon.
I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania. Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania. In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities. The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times.
Points of strongest interaction included issues surrounding an individual or couple's assets. CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents. Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission. One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from the administrators of the CCRC. A similar question arose in connection with "refundable" entrance fees. In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years. We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods. I can see another article in my future on these topics.
July 26, 2019 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, July 25, 2019
I've written about this combination of topics before. I can't quite believe I'm doing so again.
My sister and I lost our last parent on Friday. As with our father, who died in 2017, our mother's final months were complicated by dementia. Thankfully her death was gentle -- she just sort of wound down at age 93 (and 9 months -- isn't it amusing how we start counting the months again, as people tend to do when someone is nearing 5 and a half years of age).
Both of our parents had full and fulfilling lives, or as one of our friends commented, "your mother used the full runway." The care team at an assisted living community that specializes in dementia care came to know both of our parents well, and our bereavement was matched by the tears of many of the individual caregivers, each of whom had their own memory or story to share. As several of them noted, in her last days Mom seemed determined to "find" Dad. And, of course, we like to think she did find him.
But one additional complication was that as our mother reached her last hours, one caregiver who has worked for our family for several years, and that caregiver's mother, who has worked her way from CNA to head of a care team, were both coping with their own worries and grief. Both of them are U.S. citizens, but as is often true in the Southwest, a family member, a husband, is not documented. Recently he was picked up by ICE. No one knows quite where he is yet, but the family members know they are likely to face hard choices once he is deported. The family members must decide how and where they will live. My parents' care team -- and by extension the community of residents at the assisted living center -- could lose two more skilled and devoted caregivers. The fabric of aging care grows ever more fragile.
Tuesday, April 30, 2019
Apparently researchers and gamers are collaborating -- on a "game" that could be used to "identify individuals who might have early and mild symptoms of dementia that medical test aren't able to detect." The game, developed in Germany, and called Sea Hero Quest, reportedly uses virtual reality technology to have a "player" manipulate a virtual boat on a game board. Players are "given a map and shown checkpoints, then the map is taken away and players must navigate to these checkpoints in the game world without the map."
Some of the data reported strike me as, hmmm, surprising. I suspect this game might have greater validity if the players have established, previous skills in using the gaming tools, as well as interest or patience with the technology. There might also be some serious ethical questions for how the "game" is employed as a diagnostic tool. For more details, read "A Video Game Developed to Detect Alzheimer's Disease Seems to Be Working."
Monday, April 29, 2019
In January 2018, Donald Trump issued an order to keep the detention facility at Guantanamo open, with the potential for the Pentagon to add new prisoners. Following that decision, Pentagon officials, described in some accounts as being "unusually frank," discussed the need for long-term care facilities for aging prisoners who will grow old and frail. From an article in The Military Times:
The Pentagon was investing in upgrades at the Navy base under President Barack Obama, whose push to shutter the detention center couldn’t overcome opposition in Congress. But those projects, including the $150 million barracks, were funded with the understanding that they could be used by the personnel of the Navy base that hosts the detention center. Now they are viewed as part of a broader effort to be able to operate the prison for many years to come.
“Now my mission is enduring,” said Adm. John Ring, commander of the task force that runs the jail. “So I have all sorts of structures that I have been neglecting or just getting by with that now I’ve got to replace.” . . .
Officials say Camp 7 is in need of major repairs, with cracking walls and a sinking foundation, and it is not suitable to hold men who will likely be in custody for many years to come. The new unit, which would be known as Camp 8, would have cell doors wide enough for wheelchairs and hospice beds and communal areas so elderly prisoners could help each other as they grow old.
For more, read the June 2018 article, "U.S. Military Plans for Future at Guantanamo Because of Trump."
I drafted the above language for this post on Sunday, April 28, after reading a more recent, more detailed story in another publication, Defense One, titled "Guantanamo Is Becoming A Nursing Home for its Aging Terror Suspects."
From that article we hear again from Admiral John Ring, the commander in charge of the Guantanamo Task Force:
The aging population at Gitmo poses unique challenges for Adm. John Ring, the latest in a string of officers who have led the prison on one-year deployments. Defense attorneys say many detainees suffer the ill effects of brutal interrogation tactics now considered to be torture. The United States has committed to providing the same health care to the remaining detainees that it provides to its own troops, as required by the Geneva Conventions. But the secure medical facilities built to treat the detainees — Ring calls them “guests” — can’t cope with every kind of surgery geriatric patients typically need, and weren’t built to last forever. Congress has prohibited the transfer of detainees to the continental United States, which means any treatment they receive will have to take place at a remote outpost on the tip of Cuba.
“I’m sort of caught between a rock and a hard place,” Ring said. “The Geneva Conventions’ Article III, that says that I have to give the detainees equivalent medical care that I would give to a trooper. But if a trooper got sick, I’d send him home to the United States.
So, it was with interest that I read a third new story, on Monday morning, April 29, reporting that Admiral Ring has been discharged from his post, with the briefest of explanation, "loss of confidence in his ability." See The New York Times article: Guantanamo Bay Prison Commander Has Been Fired.
Sunday, April 28, 2019
PA Supreme Court's Choice of Law Ruling Obligates New Jersey Family Members to Provide Filial Support For Disabled Adult Son In Pennsylvania
In what appears likely to be the final chapter in a long-running "reverse" filial support case in Pennsylvania, a unanimous Pennsylvania Supreme Court ruled on April 26, 2019 that Pennsylvania statutory law applies to determine the liability of older New Jersey parents on the issue of whether they must pay for the long-term care costs for their son in a private institution in Pennsylvania. New Jersey law, unlike Pennsylvania law, expressly exempts any person "55 years of age or over" from a support obligation for an adult child.
I've been following the case of Melmark v. Schutt since at least 2016, and you can review some of the history of the case here, here and here. Until this ruling, the parents had successfully argued that New Jersey's law controlled the case. From the Supreme Court's opening footnote, however, where it outlined evidence of the parent's annual income, it was apparent the Court was outraged that parents who could be characterized as wealthy could refuse to pay a nonprofit care provider. The Court ruled that there was a "true conflict" between the laws of New Jersey and Pennsylvania, and recognized that while many factors such as the domicile of the parents and the stipulated 'residency" of the son pointed to the application of New Jersey law, the most significant contact factor was the "harm" of nonpayment, occuring in Pennsylvania. The Court concluded:
"[A]lthough New Jersey's welfare laws apparently provide for Alex's support at public expense, there is no reason to suppose that New Jersey has adopted a public policy favoring imposition of the ongoing cost of care for indigent adults on an unwilling private third party [i.e., Melmark].... [T]he exemption in New Jersey's statutory support law for parents over 55 years of age cannot justifiably override Pennsylvania's governing statute -- at least for the period between April 1, 2012 to May 1, 2013 -- so that the financial burden of Alex's care falls upon Melmark."
I have long thought the case has uniquely "tough facts," and Pennsylvania has a history of using Pennsylvania's law to obligate families to cover certain costs of care for indigent family members. Further, the Court also ruled that the institution had a viable related theory of recovery under Pennsylvania common law, sounding in quantum meruit or unjust enrichment.
The opinion has potential implications for cross border claims of filial support in the more typical Pennsylvania fact pattern, where adult children are asked to pay the costs of care for an aging parent who fails to qualify for Medicaid. E.g., Health Care & Retirement Corp. of America v. Pittas. I can see the potential for out-of-state children to be subject to a claim for reimbursement, especially if they have any role in choosing a Pennsylvania facility where Medicaid is unavailable to pay, facts that might also give the Pennsylvania court personal jurisdiction over the out-of-state children.
Sunday, March 31, 2019
For those who read this Blog regularly, thank you. Especially as I have been leaving the bulk of recent postings to my wonderful blogging colleague and all-round elder law guru, Rebecca Morgan. Thank you most of all, Becky!
It is early morning on a Sunday as I type this. The Arizona sun is not quite above the eastern horizon. A calm morning after several days ... okay, I confess, weeks ... of small troubles. I had time to read The New York Times, and there it is once again, an article with a title and content that seem right on point for what I am pondering:
For the last several weeks, my sister and I have been struggling to understand how best to help our mother in the latest part of her journey with dementia. Recently she fell twice in single week, when rising before dawn and struggling to get dressed by herself. She did not need to be up so early, but in a lifetime of early rising, it is hard to change. Learning new routines, such as calling for help, is never easy, but especially so when memory and awareness are impaired by dementia. Her second fall resulted in what Mom had long feared most, a fear that will resonate for many people. She fractured her hip, as well as a few annoying ribs.
This put the three of us, my sister, my mother and me, squarely in the middle of doctor consultations, hospitals, rehabilitation centers, home care agencies and a search for alternatives for care. Do you have a mental image of Queen Elizabeth in London? Perhaps you have seen photos or news footage of her in recent weeks, walking with determination and carrying her purse, as she attends to her royal duties? Well, Queen Elizabeth and our mother are the same age and seem to have very similar abilities to persevere. We think of our mother as a slightly smaller version of the Queen, perhaps walking a bit slower although with equal commitment to the task, complete with her own favorite handbag. Or she was until the recent set of events.
At age 93, Mom sailed through surgery to stabilize her fractured hip, and even did pretty well during the first phase of recovery in the hospital. One small blessing for Mom is that she has no memory of the falls, no recollection of the surgery, and no memory of pain. Thus she's surprised when it "hurts" to try to stand, much less walk. Of course, both pain and understanding of what pain signifies, are important reminders of the need to take things slow.
We've done the hospital surgery stay "thing" before with Mom, and we've learned to treat such events as a marathon, rather than a sprint. We've learned, for example, that our mother's agitation after surgery makes IVs difficult and that any form of narcotic pain medication is likely to trigger days of vivid and disturbing hallucinations. For pain, fortunately tylenol is enough with Mom. We work hard to come up with a way for someone (usually my sister, until I can fly in) to be there each night, when we know hospital staffing levels can be low and call buttons may not be answered quickly. We know that without being there, when Mom does sometimes complain of pain, we will to need to remind the staff that tylenol is usually sufficient.
We try to rotate nights. My sister is a pro, and after weeks of my somewhat frantic naps on airplanes, I've become pretty good at falling into a wakeful sleep mode in an upright position. Staying overnight in a hospital is disorienting for the healthiest person and much more so for someone like my mother who cannot understand why this "hotel" has staff members that keep waking her up at night to take her temperature and hand her medication to swallow. I will be forever grateful to the nurse who, after my mother spit a full mouthful of water and the medicine back in her face, nonetheless returned promptly to help throughout the third shift, still offering smiles and kind words. The nurses who advocate for change in The New York Times article have it right -- "safe staffing levels" are one key to sound hospital care; only with adequate staffing can nurses be expected to keep working in such taxing circumstances.
The next decision was about where to go after the hospital. One option presented by the discharge planner was to go to a skilled nursing facility, a/k/a nursing home. We had previewed a wide range of places and we already had a list of possibilities. But we were pretty confident Mom could tolerate physical therapy, and therefore, after consultation, we opted for a facility that specialized in rehabilitation.
One complication: The rehab facility's admissions director said that they were not willing to take someone with dementia unless the family made sure there was 24/7 assistance during periods of confusion and, they emphasized, to keep her from wandering. With gratitude, we accepted a brochure offered by the admissions director for a local home care agency that they had worked with before. My sister, a true angel, and I, very much a mortal, knew we couldn't do this alone.
And thus began a strange variation on the "Bell Rings; Nobody Comes" theme of The New York Times article about hospital care.
The first yellow flag was when one of the line staff, a certified nursing assistant (CNA) at the rehab facility, who heard we were hiring companions from an agency, commented, "Well, okay, if you want to do that, but just so you know, these people don't do a darn thing. They won't lift a finger to help." I didn't know what to say; I think I said something like, "Well, let us know if there is a problem."
The "problem" emerged quickly. Companions from the home care agency said the rehab staff were not responding to call buttons when help was needed for our mother. The rehab staff were complaining that the companions didn't provide any help. I talked to an administrator at the rehab center. He assured me that their policy was for staff to respond promptly to call buttons and that he would remind the staff that a family member or hired companion was doing "the right thing" by using the call buttons to seek help.
But the reports continued, even as Mom began to recover more function, and thus actually needed more help in key tasks because she was more mobile. Different companions and even friends reported that the CNAs at the rehab center would, for example, help our mother to the bathroom toilet, but then would refuse to stay until she finished. Some reported the CNA turning to the agency's companion and saying with disdain, "You should handle it from here."
I tried talking again with Rehab's administrators, this time the director of nursing. She was also quick to reassure me that we were not wrong to ask the rehab staff to assist our mother in the bathroom and to remain with her till she finished, as our mother was still unable to rise on her own and also could not or would not use the pull cord. She thought the most recent report was about one new rehab employee, who may not yet understand his or her role.
But the reports continued. One report came from a friend visiting Mom. She noticed buzzers ringing endlessly on Mom's floor, even when available staff were chatting nearby. I tried talking with the management staff again. At one point, the home care agency actually swooped in and removed a companion we hired to help our mother, after the rehab center complained to them that the companion was complaining "too loudly" about the rehab staffing and lack of coordination with staff. In response to the turmoil my sister ended up taking another night shift in rehab (after a long-day as an administrator for a charter school). I started planning another flight to Arizona.
I slowly began to realize that this was not a problem that could be "fixed" with polite requests or even more directly-worded complaints about staffing roles. I learned:
- The direct care workers at the rehab center felt seriously over-worked and under-appreciated;
- The rehab center was often short-staffed, especially when employees called off on short notice;
- The direct care workers resented the agency's companions "doing nothing" when an extra pair of hands, any hands, would have made their work easier;
- There was tension between the direct care workers, most of them CNAs, and the cehab Center's other "higher" staff, including nurses and shift supervisors;
- Family members of other patients were also concerned and confused about what to do about unevenness of care. They weren't required to have a companion as their loved one did not have the dreaded "dementia." But their need for prompt assistance for loved ones recovering from car accidents, strokes, or major surgery was just as great.
A family member of another patient in rehab commented to me, "This is a broken system." At first I thought she meant the Rehab Center. But she clarified. "This is just one part of a broken care system." She meant that all of care is a broken system.
March 31, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Games, Health Care/Long Term Care, Medicare, State Statutes/Regulations | Permalink | Comments (1)
Monday, January 14, 2019
Last week, I wrote about the possible use of medical marijuana for treatment of anxiety in patients with dementia, pointing to the importance of peer-reviewed studies. This week, I learned of a new study on the use of medical marijuana at a nursing home, and when I read the study I was not surprised to learn the study had occurred at Hebrew Home at Riverdale in New York, a location I have come to associate with both research and thoughtful innovation. Studies of medical marijuana are complicated by the disjunction in federal and state laws governing purchase and use.
In “Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life,” the authors described a medical policy and procedure (P&P) they implemented at their New York-based SNF for the safe use and administration of cannabis for residents with a qualifying diagnosis. To be compliant with state and federal statutes, policy requires that residents must purchase their own cannabis product directly from a state-certified dispensary.
After the program started in 2016, the facility provided educational sessions for residents and distributed a medical cannabis fact sheet that was also made available to family members. To date, 10 residents have participated in the program and seven have been receiving medical cannabis for over a year. Participants range in age from 62 to 100. Of the 10 participants, six qualified for the program due to a chronic pain diagnosis, two due to Parkinson’s disease, and one due to both diagnoses. One resident is participating in the program for a seizure disorder.
Most residents who use cannabis for pain management said that it has lessened the severity of their chronic pain. This, in turn, has resulted in opioid dosage reductions and an improved sense of well-being. Those individuals receiving cannabis for Parkinson’s reported mild improvement with rigidity complaints. The patient with seizure disorder has experienced a marked reduction in seizure activity with the cannabis therapy.
This study did not address cannabis as a treatment for symptoms of dementia-related anxiety. For more, see Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life, published January 2019. Interestingly, the authors are a medical doctor, Zachary J. Palace, and Daniel Reingold, who lists both a Masters of Social Work and a J.D. for his background.
January 14, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Tuesday, January 8, 2019
Months ago, when my family was considering alternatives for care of my mother as her health deteriorated and her home became increasingly unsafe, I was talking with different providers about the challenges of care when the individual is a heavy smoker (as my mother, at age 92, still was at the time). There are few options, and most licensed facilities bar smoking completely or limit it to locations that are not workable for someone with impaired movement. I joked with one provider that smoking cigarettes was prohibited but that Arizona had recently authorized medical marijuana. Arizona Statutes Section 36-2801 permits medical marijuana for those with debilitating medical conditions, including "agitation of alzheimer's disease."
The provider laughed and said, "oh, we don't permit smoking of marijuana either." I wasn't up-to-date on the technology! Apparently the preferred dispensation at that location was via "gummies." If you google "marijuana gummies" you get a remarkable range of products.
In this brave new world of medical marijuana, I can see reasons for the interest, especially in the search for safe and effective ways to help individuals whose form of dementia is marked by severe agitation. Can marijuana "take the edge off" in a safe way? Can doses be monitored and evaluated appropriately? Do "gummies" provide reliable or consistent doses of the active ingredient, most likely THC? Can there be an associated positive effect -- improved appetite (the proverbial "munchies")? Are there reporting mechanisms on the effects of use, especially in facilities that provide dementia care, that will help capture success rates and any risks? What about individuals with dementia who suffer from both agitation and delusional thinking -- could medical marijuana potentially reduce one symptom but increase another? Is the CDC tracking medical marijuana gummies or other products in the context of dementia care?
The National Conference for State Legislatures (NCSL) maintains a website on state medical marijuana laws. NCSL reported that as of 11/8/18, 33 states, plus D.C., Guam and Puerto Rico, have approved "comprehensive" public medical marijuana programs, with additional states allowing limited use of "low THC, high CBD" products in limited situations that are not deemed comprehensive medical marijuana programs.
In January 2017, the National Academies of Sciences, Engineering, and Medicine released a report based on review of "over 10,000 scientific abstracts" for marijuana health research, offering 100 conclusions related to health and ways to improve research. The conclusions are organized according to whether there is "conclusive or substantial" evidence, moderate evidence, or limited evidence about effectiveness or ineffectiveness of medical marijuana in a variety of contexts. One conclusion suggests there is limited evidence that cannabis or cannabinoids are effective for "improving anxiety symptoms," while a separate conclusion states there is limited evidence that such substances are ineffective for "improving symptoms associated with dementia."
I'm relatively new to review of literature associated with medical marijuana for dementia care/treatment, and welcome hearing from others who are aware of authoritative sources of information. (And just to be clear, this isn't a product we're considering for my mother!) I can see this topic becoming more important with time in our aging world, especially as additional sources of dementia-treatment evidence may become available.
January 8, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, Science, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, January 6, 2019
The Hastings Center addressed this in its latest special report, Defining Death: Organ Transplantation and the Fifty-Year Legacy of the Harvard Report on Brain Death. The abstract for the introduction explains:
This special report is published in commemoration of the fiftieth anniversary of the “Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” a landmark document that proposed a new way to define death, with implications that advanced the field of organ transplantation. This remarkable success notwithstanding, the concept has raised lasting questions about what it means to be dead. Is death defined in terms of the biological failure of the organism to maintain integrated functioning? Can death be declared on the basis of severe neurological injury even when biological functions remain intact? Is death essentially a social construct that can be defined in different ways, based on human judgment? These issues, and more, are discussed and debated in this report by leading experts in the field, many of whom have been engaged with this topic for decades.
Friday, January 4, 2019
Recent news reports are focusing on the history of Frenchwoman Jeanne Calment, who died in 1997 at the purported age of 122 years and 164 days, a record that is still unsurpassed.
Some are convinced that she was not that old, and the possible motivation for the fraud is interesting. Did a daughter assume the identity of her mother, rather earlier in the history, to avoid paying inheritance taxes? One researcher notes the lack of any evidence of dementia as a clue.
For more, see "Researchers Claim World Record for Longest Life a Case of ID Fraud" from CBS News.
Wednesday, January 2, 2019
On December 31, 2018, the President signed S. 2076. The bill, with the somewhat unwieldy title of "Building Our Largest Dementia Infrastructure for Alzheimer's Act" or "BOLD Infrastructure for Alzheimer's Act," was approved in the Senate by a voice vote on December 12 and by the House on a vote of 361 to 3. The law amends portions of the Public Health Code (at 42 U.S.C. Section 280c) to increase funding and restate priorities related to Alzheimer's and related dementias. The funding authorized in the last provision of the law if for "$20,000,000 for each of fiscal years 2020 through 2024." As one of my colleagues, administrative law guru Professor Matthew Lawrence reminds me, implementation of the new law will also likely require Congressional approval with an appropriations bill (or bills).
The scope of this bill is, shall we say, broad. It is not necessarily about funding research into causes or cures for dementias. New language in the bill directs the Secretary of Health and Human Services to award grants, contracts or cooperative agreements with eligible entities (which includes "institutions of higher education") for the establishment or support of regional centers to "address" Alzheimer's and related dementias by:
(A) advancing awareness of public health officials, health care professionals and the public on current information and research related to dementias,
(B) identifying and translating promising research finding into evidence-based programmatic interventions for both those with dementia and their caregivers,
(C) expanding activities related to Alzheimer's disease, related dementias and associated health disparities.
Other portions of the legislation seek to improve state and federal reporting and analysis of data on the incidence and prevalence of dementias; in addition, a section of the bill is directed to programming by state public health officials or agencies, with a 30% state matching fund requirement (unless the matching would cause "serious hardship").
Senators Tim Kaine (D-VA) and Susan Collins (R-ME) were two of the primary sponsors of the legislation, which reportedly received support from "183 organizations and individuals, including the Alzheimer's Association, Alzheimer's Impact Movement and Maria Shriver, founder of The Women's Alzheimer's Movement."
January 2, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Grant Deadlines/Awards, Health Care/Long Term Care | Permalink | Comments (0)
Wednesday, December 19, 2018
Recently I had a chat with a lawyer I've known for years who does a very good job representing large nursing home chains. We found ourselves shaking our heads about a series of news stories reported by central Pennsylvania's Patriot News focusing on care facilities formerly operating as part of the Golden Living chain. See the investigatory report, Still Failing the Frail.
Apparently, even after pressured transfers of the facilities to different companies, presumably companies with better management and better financial resources, many of them "continue to rack up citations with the state Health Department" for substandard practices. I asked the lawyer whether he knew of any nursing home chain that has been able to pull out of death spiral? He couldn't remember one.
There is very little margin when low-income residents depend on Medicaid for payments. Once a facility is affected by fines and pressures to increase staffing, the margin becomes even tighter. Few states want to assume the roles of trustee or receivers for such properties. The article concludes that one necessary step is to increase Medicaid funding.
Although researchers recommend that nursing homes provide at least 4.1 hours of care per resident per day, it remains an open question whether all nursing homes can afford to do that.
State and federal governments are the primary payers for the vast majority of nursing home residents. Residents receiving short-term rehabilitation are generally covered by Medicare, administered by the federal government. Long-term residents are generally covered by Medicaid, administered by state governments.
The problem is that state Medicaid programs, as in Pennsylvania, pay nursing homes far less than federal Medicare – sometimes as much as a third.
Although nursing home advocates and some researchers believe for-profit nursing homes routinely skimp on care in order to paid their profits, there are also genuine concerns about whether Pennsylvania’s Medicaid funding is adequate.
Researchers recommend how much of existing Medicaid and Medicare dollars are going to profit and administrative costs in homes. That would help determine whether Medicaid rates need to be raised and, if staffing standards are also raised, how much additional funding they need to provide those levels.
For some states, such as Pennsylvania, the Medicaid funding formula is part of the challenge. As discussed in the series, other states have been able to create direct payment models to assure better accountability for patient care.
The more I work in the field of elder law, and teach classes, the more I am convinced that enterprises who market to families and seniors fail to realize greater transparency can help their commercial products and enterprises succeed.
Thus, it is useful to read a New York Times' column on annuities, one that appears to be the first of a series. The author, Ron Lieber, begins his column on The Simplest Annuity Explainer We Could Write:
Annuities can be complicated. This column will not be.
After I wrote two weeks ago about getting tossed out of the office of an annuity salesman, there was a surprising clamor for more information about this room-clearing topic. One group of readers just wanted a basic explainer on how annuities work. For that, read on.
Another group of readers worried that those hearing of my experience might assume that all annuities are bad, and that all people who sell them use subterfuge to do so. Neither of those is true: Next week, I’ll introduce you to some reasonable people who are trying to use certain annuities in new and improved ways.
My thanks to Dickinson Law colleague Laurel Terry for the heads up!