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!
Tuesday, December 18, 2018
The DC Bar is offering a CLE program on "Faultlines and Eruptions: Legal Ethic in Perilous Times." Here are some of the included topics:
Widespread discord in our current culture places unusual stress on professional ethics, and –
unfortunately – the legal profession is not immune. The past year saw many legal professionals, including famous names in the law, make questionable decisions and breach legal ethics standards, providing both cautionary tales and fodder for analysis. This challenging and interactive class will explore important developments and looming perils that every lawyer should be ready to face.
- Legal ethics for "fixers"
- Direct adversity vs. "general adversity," and whether it matters
- Sexual harassment as a legal ethics problem, and the profession's vulnerability to "The King's Pass"
- Defying a client for the client's own good
- Fees, referrals, and gaming the rules for fun and profit
- Professional responsibility vs. legal ethics
- The increasing threat to law firm independence and integrity
- The technology ethics earthquake
All topics seem relevant to today's "interesting" times.
Monday, December 17, 2018
University of Cincinnati College of Law Professor of Practice Emerita Marianna Brown Bettman has a very interesting and well-written Blog report on the Ohio Supreme Court's December 12th decision in Embassy Healthcare v. Bell. The issue is under what circumstances a surviving spouse can be held liable for her deceased husband's nursing home costs under a statutory theory of "necessaries." Lots to unpack here.
December 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, December 10, 2018
For anyone working in legal fields where adult guardianships may be an option, for anyone teaching elder law, health care law, constitutional law or even landlord-tenant law, a recent New York Times article, "I'm Petitioning . . . for the Return of My Life," is an important read.
On a threshold level, this is a well-told tale of one woman, Ms. Funke, who becomes subject to an intervention under New York adult protective services law, and, eventually, to a full-blown guardianship proceeding. It can be easy to become enraged on behalf of Ms. Funke as you read details about her past life as a freelance journalist and world traveler, and compare it to the limitations placed on her essential existence under a guardianship.
The article is a rather classic example of using one tragic story, a human story, to paint a picture of a government process gone wrong. At several points in the article, the writer, John Leland, offers questions that suggest some conclusions about how unfair the process has been to Ms. Funke. The writer asks, for example,
"If you were Ms. Funke, shouldn't you be allowed to withdraw into the covers [of your bed] if you wanted to? And the clutter in your apartment -- couldn't people understand that a writer needs materials around? Even if she were evicted, she had money to start somewhere else. Courts evict people with lots less [than she appears to have]. "
It's implied that the answers to those questions may outweigh the fact that the protective services intervention prevented the landlord from completing an eviction of Ms. Funke, an eviction that would have forced her out of her apartment of 40+ years.
Other, less dramatic details in the article suggest that for every Ms. Funke, there may be other people -- an unknown number of people in New York -- who are also very alone and who have also lost control over their lives because of physical frailty, mental decline, depression or other facts, and who are rescued with the help of a protective services intervention. Sometimes the intervention interrupts the decline, usually with the help of family member or friend who volunteers to help, sometimes acting with a measure of authority under a power of attorney, making a guardianship unnecessary.
The challenge, of course, is knowing when to help (and how far to go), and when to preserve the individual's right to make choices that appear unsafe. Some of the most complex cases involve people who have spent a lifetime on a unique and often solo path, and now have few family members or friends to help them as that path becomes rockier with age or illness, especially when they have no plan for the future. In the face of such facts, as one person interviewed in the article observes, guardianships are a "blunt instrument."
Something I wrote about last week also figures into the New York situation -- the apparent absence of a guardianship case tracking or monitoring system.
But another issue I'm concerned with is also suggested. At one point, an interview with one of Ms. Funke's guardians, a so-called professional (in other words, not a family member or a public guardian) discloses he does not know how far his authority as guardian extends. For example, would he be allowed to prevent her from marrying? He responded, he did not know.
It would seem that guardians and other agents, alleged incapacitated persons, -- and family members -- could all benefit from greater information, and to ongoing education on their rights, duties and options. That was also a theme emerging from article asking the question "Where's Grandma?" that I linked to last week and that I link to again here.
My thanks to the several folks who suggested this New York Times article for discussion on our Blog, including my Dickinson Law colleague, international human rights expert, Dermot Groome.
December 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Wednesday, December 5, 2018
I've been a bit busier than usual lately and haven't felt I could take the time to Blog regularly even though I'm constantly seeing intriguing topics to discuss. I'm buried in a manuscript with a looming deadline! Fortunately, I'm seeing that Becky Morgan is keeping everyone updated and I've been benefiting from her regular reports. I hope to get back to daily posts of my own by January.
In the meantime, I can report on a smaller, interim task of serving as a co-presenter for a half-day Continuing Legal Education program at the Pennsylvania Bar Institute on new developments in Guardianship Practice and Procedure on Friday, December 7. Among the important developments, the Pennsylvania Courts is nearing completion on its statewide implementation of a Guardian Tracking System or GTS. In 2014, the Supreme Court's Elder Law Task Force strongly recommended adoption of such a system, having determined just how little was actually known across the state about open guardian cases. Implementation of the new system began with a pilot in Allegheny County in July 2018. As of today, 60 counties are "live" in the system. The remaining 7 counties are scheduled to be included by the end of this month.
With the help of the new tracking system, I learned that we currently have more than 14,000 active guardianships in Pennsylvania.
Key features of the GTS system include:
- Automation: a means of automatically running a process to check specific aspects of guardianship reports for missing information or other concerns;
- Flagging: when a concern is detected, the item is automatically flagged, allowing court personnel to review and respond to the potential problem;
- State-wide Court Communications: providing the court system with a means of immediate and cost-effective state-wide communications whenever a judge in one case is alerted to suspicion of neglect or other improper conduct by a guardian; and
- Alerts on Specific Guardians: when an "alert" is triggered on a specific guardian in one case, the system will generate notices to all of the other courts in the state, alerting them to the potential need for action on that individual in their cases.
Such a system required entirely new software, new reporting forms, and new court rules to make implementation effective. We will be talking extensively about the new rules and forms on Friday. The migration from the older system of record-keeping imposes a huge learning curve on many involved in guardianship matters, including lawyers.
The need for better systems in Pennsylvania has been highlighted during the last year of controversies surrounding appointment of one particular individual as guardian for alleged incapacitated persons in three Pennsylvania counties. She is accused of mismanaging cases, plus it turned out she had a criminal history for fraud in another state.
See also the recent news reports about another Pennsylvania guardianship matter that asks the troubling question "Where's Grandma?" The reporter on this case, Cherri Gregg, who also happens to be a lawyer, opines that everyone in the case, including the lawyer appointed as guardian, and the family members of the person subject to the guardianship, needed better education about their roles after the grandmother's own children passed away, as the grandmother became more vulnerable, and especially when it became necessary to place her in a nursing home.
My special thanks to Karen Buck, Executive Director of the SeniorLAW Center in Philadelphia, and the good folks at Pennsylvania Courts' Office of Elder Justice for helping me with my part of the presentation for Friday!
December 5, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, October 29, 2018
Law students from Penn State's Dickinson Law attended sessions hosted by LeadingAge and National Continuing Care Residents Association (NaCCRA) on October 28 in Philadelphia. It was my pleasure to share this experience with students. I see these opportunities as a great way to think about the wider world of business and law opportunities, and to consider how law and aging can intersect.
In the morning, we heard from A.V. Powell about best practices for actuarial evaluations to promote greater understanding of financial issues for continuing care and life plan communities across the country. At lunch we met Parker Life's CEO Roberto Muñiz, shown here on the right with Dickinson Law student Mark Lingousky, and discussed Roberto's ongoing projects such as working to established coordinated care options not just in Parker's center of operations in New Jersey, but also in Roberto's family home in Puerto Rico.
After lunch we attended a LeadingAge educational program on "Legal Perspectives on Provider Operational Issues," presented by four attorneys from around the country. Afterwards the students commented that they were surprised by how many of the topics had come up in one of Dickinson Law's unique 1L courses, on Problem Solving and Lawyering Skills. It is great to see such correspondence between real life and law school life. Of particular interest was hearing how residential communities are coping with issues connected to legalization of marijuana, including medical marijuana and so-called recreational marijuana, both from the context of resident use and potential use by employees.
On the drive home from Philadelphia, I had the chance to debrief with the students about what most interested them at the conferences. They quickly said they appreciated the opportunity to talk with engaged seniors about what matters concerned them. Indeed, after the attorneys leading the afternoon program took a quick poll at the outset to ask how many of the members of the audience were attorneys (outside or inside counsel), operational staff, or board members, one student leaned into me and said, "They forgot to ask how many people in the audience were residents or consumers of their services!"
Music to our ears, right Jack Cumming?
October 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management | Permalink | Comments (1)
Friday, October 26, 2018
My first close look at filial support law in Germany arose in 2015, when I met a German-born, naturalized U.S. citizen living in Pennsylvania who had received a series of demand letters from Germany authorities asking her to submit detailed financial information for the authorities to analyze in order to determine how much she would be compelled to pay towards care for her biological father in German. Her father had become seriously ill and did not have inadequate financial resources of his own. As I've come to learn, the name for Germany's applicable legal theory is elternunterhalt, which translates into English as "parental maintenance."
Since 2015, I've heard from other adult children living in the U.S., but also in Canada and England, about additional cross-border claims originating in Germany. They write in hopes of getting objective information and to share their own stories, which I appreciate. In some instances, such as the first case I saw in Pennsylvania, a statutory defense becomes relevant because of past "serious misconduct" on the part of the indigent parent towards the child. The misconduct has to be more than mere alienation or gaps in communication. Sometimes misconduct such as abuse or neglect is the very reason the child left Germany, searching for a safer place.
Most of the adult children who reach out to me report they had never heard of elternunterhalt. Their years of estrangement are often not just from the parent but from the country of their birth. Even those who still have a relationship with the parent in Germany often learn of the potential support obligation only after their parent is admitted to a nursing home or other form of care. They face unexpected demands for foreign payments, while they are often still looking to fund college for children or their own retirement needs.
National German authorities began to mandate enforcement of elternunterhalt in 2010 in response to increasing public welfare costs for their "boomer" generation of aging citizens. Enforcement seems to have been phased in slowly among the 16 states in the country. I've read news stories from Germany about confusion and anger in entirely domestic cases.
A claim typically begins with letters from a social welfare agency in the area where the needy parent is living. The first letters usually do not state the amount of any requested maintenance payment, but enclose forms that seek detailed, documented information about the "obligated child's" income and certain personal expenses or obligations (such as care for minor children). The authorities also seeks information about any marital property and for income for any spouse of "life partner."
Whether or not the information is supplied, at some point in a wholly domestic German case the social welfare office may initiate a request for a specific amount of back pay as well as current "maintenance." Such a request cannot be enforced unless the child either agrees to pay or a court of law decrees that payment must be made. The latter requires a formal suit to be initiated by the agency and litigated in the family divisions of the German courts. The amount of any compelled payment is determined by a host of factors, including the amount of the parent's pension, savings, and any long-term care insurance, and the child's own financial circumstances.
Cross border cases have been pursued within the EU with some reported results. As for parental maintenance claims presented to U.S. children, enforceability is less clear. According to some of the letters sent by German authorities, Germany takes the position that a German court ruling in a cross border elternunterhalt claim can be enforced in the United States under "international law." The letters do not explain what legal authorities are the basis for such enforcement.
The Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance was approved by the European Union, thereby affecting Germany, in 2014. The treaty is mostly directed to the mechanics of international child support claims and is built on past international agreements on child support; however the treaty also provides that the Convention shall apply to any contracting state that has declared that it will extend the application "in whole or in part" to "any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons." See Article 2(3).
October 26, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, International, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Wednesday, October 24, 2018
A notice about an upcoming continuing legal education program struck me as an apt sign of the times in elder law planning. The Pennsylvania Bar Institute explains:
Many clients are members of "modern family" structures. Our experienced faculty — with different legal perspectives — will explore the issues and opportunities available when planning for the long term care needs of clients in blended and non-traditional families. At the intersection of family law and elder law, they will examine various techniques, including long term care planning for clients with children from previous marriages and planning for unmarried partners.
Receive practical guidance on counseling clients
• Representation and conflict issues
• Information gathering tips
Examine issues at the intersection of family law and elder law
• Pre and post nuptial agreements
• Cohabitation agreements
• Gifts to divorced or separated children, alimony & child support issues
Explore long term care planning tools and techniques
• To marry or not to marry for long-term care
• Use of irrevocable trusts
• High assets/income: private pay, life insurance, and long term care insurance
• Spousal refusal
• Transfers by the community spouse after Medicaid eligibility
• To gift or not to gift: single individual vs. community spouse
For more, see Long Term Care Planning for Blended and Non-traditional Families, scheduled for first airing on November 27, 2018.
October 24, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 23, 2018
In a perfect world, everyone will be able to handle all of their own affairs, right until the day they die. In a perfect world, even if that was not possible (or even desirable), there is always some trustworthy family member or friend to step in to help.
Alas, it isn't a perfect world. For a number of years, when I was supervising an Elder Law Clinic, our clients sometimes needed the assistance of a professional agent or guardian, someone who was experienced in providing fiduciary management services for people of modest means, and who had a track record and references to demonstrate competence. We also wanted to see their certificate of insurance or bonding.
Recently I was looking for a guest speaker for a Nonprofit Organization Law class and I reached out to a company in my address book. I learned it had ceased doing business. In contrast to the dramatic stories from locations such as New Mexico, where nonprofit entities failed to carryout their fiduciary duties, Neighborhood Services, based in Lancaster, Pennsylvania found it necessary to close their doors for 300 vulnerable clients because of gaps in charitable funding.
Some clients had behavioral health needs. Approximately 150 of the clients were incapacitated people living in nursing and personal care homes in a multiple county region. New representatives were needed for all of them. A 2017 news story explained:
Founded in 1964, nonprofit Neighborhood Services fell over $400,000 in debt after losing most of its United Way funding a couple of years ago and failing to secure key federal grants, said Stanley, who joined the agency in October 2015 as its woes were mounting.
The agency, which never prioritized fund-raising, has lost several staff members in recent months and currently employs five.
Neighborhood Services’ most visible role has been serving as the representative payee for more than 150 clients with intellectual disabilities, mental illness or addiction issues. The agency received the clients’ monthly disability checks and prioritized the payment of their rent and other basic needs.
"I'll miss all the staff," said Nathan Wilson, 57, who relied on Neighborhood Services to manage his finances. "Whenever I need extra, they always get it for me."
This history is a reminder that more than good intentions are needed to run a successful nonprofit organization.
October 23, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 18, 2018
The Pennsylvania Legislature did not reach either SB 884, involving major changes in adult guardianship laws, or HB 2291, that would have blocked state authority to investigate complaints about the scope of services provided in senior public housing or independent living units in continuing care retirement communities (CCRCs), before adjourning to permit legislators to return to their districts for the final push before the November 2018 elections. It is unlikely that either bill will receive further consideration this session. New legislation would need to be introduced in the next legislative session, for fresh consideration in 2019.
One bill that did pass both Houses on October 18 in the waning hours of the 2017-18 session is HB 2133, Printer's No. 3107 to establish a Kinship Caregiver Navigator Program within the PA Department of Human Services as "a resource for grandparents who are raising their grandchildren" outside of the formal child welfare system. The online navigator program is to be created by an outside contractor. The fiscal note attached to the bill projects an estimated cost of about $2.2 million, with about half of the funds coming from federal sources.