Elder Law Prof Blog

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

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

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

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

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

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

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

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

 

Justice Department Expands Strike Force to Protect Older Americans from Fraud

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

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

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

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

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

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

Some Critical Access Hospitals Overpaid by Medicare?

And another report from the HHS Office of Inspector General,  Medicare Part B Overpaid and Beneficiaries Incurred Cost-Share Overcharges of Over $1 Million for the Same Professional Services.  Here is their findings:

Not all Medicare Part B payments made to CAHs for professional services and payments made to health care practitioners complied with Federal requirements. For the 40,026 claims we audited, CAHs and health care practitioners each submitted an equal number of claims. However, for each date of service, only one of the claims complied with Federal requirements. As a result, Medicare administrative contractors (MACs) paid providers $907,438 more than they should have been paid, and beneficiaries were held responsible for $281,321 more than they should have been.

These overpayments occurred because CMS did not have claim system edits to prevent and detect duplicate professional services claims for the same date of service, beneficiary, and procedure.

The full report with comments and recommendations is available here.

Certain SNF non-compliance on infection control and more?

The Office of the Inspector General for HHS has released a report,  Certain Life Care Nursing Homes May Not Have Complied With Federal Requirements for Infection Prevention and Control and Emergency Preparedness.

Here is a summary of their findings

Selected Life Care nursing homes may not have complied with Federal requirements for infection prevention and control and emergency preparedness. Specifically, 23 of the 24 nursing homes selected had possible deficiencies. Actual deficiencies can only be determined following a thorough investigation by trained surveyors. At 22 nursing homes, we found 35 instances of possible noncompliance with infection prevention and control requirements related to annual reviews of the Infection Prevention and Control Program, training, designation of a qualified infection preventionist, and Quality Assessment and Assurance Committee meetings. We also found at 16 nursing homes 20 instances of possible noncompliance with emergency preparedness requirements related to the annual review of emergency preparedness plans and annual emergency preparedness risk assessments. Life Care officials attributed the possible noncompliance to: (1) leadership turnover, (2) staff turnover, (3) documentation issues (i.e., information was not documented or documentation was either lost or misplaced), (4) staff members who were unfamiliar with requirements (i.e., requirements stipulating that there is no grace period for infection preventionists to complete specialized training and that emergency preparedness plans needed to be reviewed annually), (5) qualified personnel shortage, and (6) challenges related to the COVID-19 public health emergency. We also believe that many of the conditions noted in our report occurred because CMS did not provide nursing homes with communication and training related to complying with the new, phase 3 infection control requirements, or clarification about the essential components to be integrated in the nursing homes’ emergency plans. 

The full report with recommendations is available here.

A Model for Other States? Pennsylvania's Law Schools form Consortium in Active Support of Elder Justice

Faculty members representing all nine law schools in Pennsylvania have joined together in a unique effort.  The inspiration was communications initiated by jurists in the Pennsylvania Courts, especially Supreme Court Justice Debra Todd, promoting the need for sound legal advice and representation for older persons. The purpose of Pennsylvania academics' new Elder Justice Consortium is to identify, examine, and seek to alleviate challenges and difficulties facing diverse older populations across the Commonwealth. 

This mission will include support for direct legal services for older adults, sometimes through law school clinics or service projects, as well as "pop-up" outreach and educational modules that focus on older adults in underserved communities and regions.  

Duquesne University School of Law Assistant Professor Katherine L.W. Norton, who also serves as the director of clinical legal education programs at her school, is serving as the inaugural chair of the Consortium.  During the summer of 2022,  more than fourteen faculty members met regularly to identify ways that law schools can effectively increase our support and commitment to "elder justice."  Professor Norton reports the group invited guest speakers from IOLTA (Interest on Lawyer's Trust Accounts) and the SeniorLAW Center in Philadelphia to share their ideas on funding and needs, as well as seeking a legislative update on guardianship law reforms from Patrick Cawley, an Elder Law attorney from central Pennsylvania who earlier served as counsel for an influential committee in the Pennsylvania Senate.  Members of the consortium also exploring joining an amicus team in a case to be argued before the United States Supreme Court in November. The case addresses whether residents of nursing homes have the right to enforce key provisions of the federal Nursing Home Reform Amendments (OBRA 1987) via direct suit under Title 42, United States Code, Section 1983.  

The Consortium's next step will be for the Deans of the nine law schools to meet in September 2022 in Philadelphia with representatives of the Pennsylvania Supreme Court and other interested parties to discuss programming options and priorities for action with the support of our law schools.  Stay tuned, and let us know whether Law Schools in your state have similar teams on behalf of older people.

Air Travel When Using A Wheelchair

Did you see this article in the New York Times a couple of weeks ago?  Embarrassing, Uncomfortable and Risky: What Flying is Like for Passengers Who Use Wheelchairs is compelling and enlightening and makes the reader wonder if there isn't room for a lot of improvements from airlines and airports for these passengers.  If you haven't read it, you really must.  There is an audio version of the article also available at the same website, but the accompanying photos are also quite compelling. Follow the passenger in the story on his journey from arrival at the airport to arrival at his destination. 

Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id. 

Billing Issues with Some Medicare Advantage Plans?

The Washington Post ran an article recently,  Beat cancer? Your Medicare Advantage plan might still be billing for it.

According to the article, the U.S. filed a false claims lawsuit in California against a health system, which is just one of others filed by the Government "on abusive billing practices in Medicare Advantage ...  [by] pursuing civil lawsuits against multiple companies that participate in the privatized system, from huge insurers to prestigious nonprofit hospital systems, alleging they have cheated the system for unfair profit."  The article notes that the industry's position is that the "firms adhere to Medicare’s rules and follow the system’s guidance on regulations that are not always clear. Moreover, the industry says that listing all health issues on medical records is a crucial part of Medicare Advantage’s promise to anticipate health problems, proactively manage disease and reduce hospitalizations."  Read the full article to learn more.

Cognitive Aging, Maturity and Guns

Yesterday I wrote a blog post about gun use that several of my friends correctly characterized as heartfelt.  Of course, legal research is merited, and I find that my view echoes what is written in a key section of a very recent opinion:

Beyond these significant safety concerns, contemporary scientific research increasingly sheds light on the relative immaturity and incomplete cognitive development of young adults. California cites to evidence that young adults are less mature than older adults, which leads them to take more risks and behave more reactively than their elders. Young adults are thus quicker to anger than older adults and more vulnerable to intense mood swings and to making instinctive, rather than considered, decisions. This cognitive immaturity makes young adults more likely to use firearms in situations of significant emotional arousal or perceived threat, or other situations that require rapid, complex information processing. Other Circuits have credited similar evidence to uphold regulations on firearms affecting 18 to 20-year-olds. NRA, 700 F.3d at 208; Horsley v. Trame, 808 F.3d. 1126, 1133 (7th Cir. 2015). The semiautomatic rifle regulation helps to “ensure that access to these weapons is restricted to mature individuals who have successfully completed safety training,” such as members of law enforcement and the military, “furthering the public safety objectives and ensuring that the Founding Era balancing of Second Amendment rights with safety concerns continues today.” Jones, 498 F. Supp. 3d at 1328.

Unfortunately, this is from the dissenting opinion in Jones v. Bonta, decided by the 9th Circuit with an opinion issued less than two weeks before the shooting in Uvalde, Texas.  Sigh.  

Or, as the always astute Professor Naomi Cahn observes, "The irony of the timing of such a ruling is beyond distressing." 

Challenge to Residency Requirement in Oregon Medical Aid-in-Dying Statute

The Associated Press reported that Oregon ends residency rule for medically assisted suicide.  A lawsuit challenging the residency requirement had been filed and as a result of a settlement, "Oregon will no longer require people to be residents of the state to use its law allowing terminally ill people to receive lethal medication, after a lawsuit challenged the requirement as unconstitutional. ...  [T]he Oregon Health Authority and the Oregon Medical Board agreed to stop enforcing the residency requirement and to ask the Legislature to remove it from the law."  The suit addresses an issue faced by doctors who "had been unable to write terminal prescriptions for patients who live just across the Columbia River in Washington state. [Even though] Washington has such a law, providers can be difficult to find in the southwestern part of the state, where many hospital beds are in religiously affiliated health care facilities that prohibit it."  The article indicates that advocates intend to challenge the residency requirement in other states with aid-in-dying laws.    Stay tuned.

DOJ Found Colorado Violated the ADA

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

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

Slam the Scam Day

What will you be doing on Slam the Scam Day? Being a safe and smart consumer?  The SSA Inspector General announced in a press release that Slam the Scam day will be held on March 10, 2022.

Slam the Scam Day is an initiative to raise public awareness of the pervasive scams that continue to plague the nation and is part of the Federal Trade Commission’s National Consumer Protection Week, (NCPW) happening March 6-12, 2022. The initiative, which began in 2020 to combat Social Security-related scams, is now expanding to include other government imposter scams. In a government imposter scam, someone claims to be an SSA, or another government employee, and may ask for personal information, demand payment, or make threats. These scams primarily use the telephone, but scammers may also use email, text messages, social media, or U.S. mail.

The focus of this year's initiative is spotting the scams. "SSA OIG provides resources on its website and posts tips and warnings on social media platforms.  There will be webinars and social media chats to give the public information that empowers them to Slam the Scam."

 

"Dinobabies" at IBM? NY Times Article

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

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

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

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

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

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

Social Security Survivors Benefits for Those LGBTQ Who Could Not Marry

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

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

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

Important and good news!

Using Dark Web to Steal Older Americans' Identities

The U.S. Attorney's Office for the Northern District of Georgia released a press release that Two Georgia men sentenced for using Dark Web to steal identities of elderly victims. According to the press release, here's how the scam worked. "[T]he charges, and other information presented in court: [two perpetrators] purchased personal identifiable information (PII) from dark net markets and used the information to open credit accounts using the victims’ information. They then forwarded the phone lines, mailing addresses, and the emails of their victims to their control. This allowed [the perpetrators] to impersonate victims with creditors and prevented victims from learning about the fraud."

One defendant "was sentenced to three years, ten months in prison for access device fraud, to be followed by two consecutive years imprisonment for aggravated identity theft.  He was also sentenced to serve three years of supervised release and ordered to pay restitution in the amount of $108,397.55.  [He] was convicted on these charges on May 14, 2021, after he pleaded guilty."  The other defendant "was sentenced to one year, six months in prison for access device fraud, to be followed by two consecutive years imprisonment for aggravated identity theft.  He was also sentenced to serve three years of supervised release and ordered to pay restitution in the amount of $66,097.55.  [He]was convicted on these charges on September 9, 2021, after he pleaded guilty."

Thanks to my friend and colleague Professor Bowman for sending me the link to the press release.

 

NY Times Investigation Into CMS Appeals Process for SNFs

The New York Times published the results of an investigation into SNF deficiencies in How Nursing Homes’ Worst Offenses Are Hidden From the Public opens with 3 examples of errors and notes "[s]tate inspectors determined that all three homes had endangered residents and violated federal regulations. Yet the federal government didn’t report the incidents to the public or factor them into its influential ratings system. The homes kept their glowing grades."

Describing the results of the investigation, the article notes

that at least 2,700 similarly dangerous incidents were also not factored into the rating system run by the federal Centers for Medicare and Medicaid Services, or C.M.S., which is designed to give people reliable information to evaluate the safety and quality of thousands of nursing homes.

Many of the incidents were uncovered by state inspectors and verified by their supervisors, but quashed during a secretive appeals process, according to a review of thousands of pages of inspection reports and nursing home appeals, which The Times obtained via public-records requests. Others were omitted from the C.M.S. ratings website because of what regulators describe as a technical glitch.

Knowing the importance of the results of the inspections, the article offers that "[o]n-the-ground inspections are the most important factor in determining how many stars homes receive in Medicare’s rating system. The reports that inspectors produce give the public an unvarnished view inside facilities that house many of the country’s most vulnerable citizens."  

Despite the importance of such info, the system isn't transparent.  "On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public." Even though CMS may prevail, the results don't always end up on the compare website.  Why not?  "Jonathan Blum, the chief operating officer for C.M.S., said that citations are omitted during state-level appeals to be fair to nursing homes that are disputing inspectors’ findings. He acknowledged that even after appeals are exhausted, some citations still don’t appear on Care Compare. He said C.M.S. is 'working to correct this issue.'"

The article offers an excellent overview of the inspection requirements and process, as well as pointing out some of the limitations of the process.

This is a really important report and I plan to make it required reading for my students. You need to read it also!

Thanks to my friend and colleague, Professor Bauer, for sending me the link to the article.

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

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

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

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

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

FTC Report to Congressional Committees On Protecting Older Adults 2020-2021

Friday I wrote a post on the FTC resources on COVID Scams, and now I wanted to be sure you saw their recent report to Congress, Protecting
Older Consumers 2020–2021. Here is an excerpt from the introduction:

This past year, the global pandemic has hit the health and finances of older communities particularly hard. As can be seen from numerous FTC cases, older adults continue to be targeted by a wide range of scams and the unfair and deceptive marketing of products and services. This past year, the FTC’s law enforcement efforts included a focus on schemes capitalizing on the fears and economic uncertainty associated with the pandemic to deceptively peddle products related to the prevention and treatment of COVID-19. In addition to its law enforcement efforts, the FTC has redoubled its efforts to reach communities of older adults throughout the country with its varied outreach campaigns. The FTC also has conducted research regarding fraud reports filed by consumers nationwide, which reveals patterns and trends related to fraud impacting older adults. These analyses help inform the agency’s efforts to respond to the needs of older consumers.

This is the 4th year that the FTC has done this report; the Elder Abuse Prevention & Prosecution Act of 2017 added the reporting requirement. This year's report lists and discusses 15 actions that the FTC determined had a significant effect on older consumers and a summary of enforcement actions.  The report includes consumer outreach efforts as well as the strategies that the FTC is using to shield older consumers from these scams. Appendix A is a chart of the various cases from the year, a quick scan of which will give you a good idea of the types of scams being perpetrated against older consumers.

 

An Expanding Role for State and Federal Courts in Assessing "Dementia"

In any given week, I often have someone reach out to me, a mere lawyer, asking me for suggestions about how to access assistance for a family member, a friend, or a colleague who is experiencing "mild to moderate dementia."  Of course, part of those requests arise because of my identity as an elder law attorney.  But, still, I think that such requests are a sign of the public's difficulty in identifying trustworthy alternatives.  This week, for example, a call came from a commercial attorney who was startled to realize he might be the closest to a family friend who is struggling with her doctor's strongly-worded recommendation that she should no longer live alone, because of serious difficulties with her memory and balance.  The family was unable or unwilling to help her.   Thus, the commercial attorney was learning about how/whether he could become her surrogate, if needed, for accessing better care and more suitable living arrangements.  Without such a friend, the decision-maker would likely end up being a complete stranger. 

Also this week, however, I was researching a question that led me to put "dementia" into a search box on the Westlaw search engine for recent court decisions.  I expected to see guardianship and conservatorship cases, as that is probably the most obvious reason why lawyers and courts would be involved with dementia.

Instead,  3 of the first 5 case decisions (reported during September 15-September 24) reported on Westlaw involved requests by convicted criminal defendants for relief or modification of sentences due to consequences of dementia.  This means judges are being asked to evaluate the severity of progressive conditions and the impact of the diagnosis on the likelihood the defendant will reoffend if released.  See e.g., Sentencing Guidelines Manual's application notes listing "advanced dementia" as a possible factor in considering whether there are "extraordinary and compelling reasons" for a reduced or modified sentence.  

Two cases decided by federal courts on the same day stood out: 

In U.S. v. Shabazz (USDC for District of Columbia, 9/22/21), compassionate release was denied for a 55 year old man, who had served 46 of his 67 month sentence for heroin and cocaine sales.  The defendant was seeking early release to help provide live-in care for his 80 year old mother who was suffering from worsening dementia, requiring constant care.  The court observed:  

The Court finds that Mr. Shabazz does not meet this high bar [of proof to support compassionate release]. To be clear, the Court fully credits the assertions of Mr. Shabazz, his sister, and [his mother's] doctor with regard to [his mother's] condition. But Mr. Shabazz has not shown that he is the “only available caregiver” for his mother, nor is his situation so rare as to qualify as “extraordinary.” While the Court is deeply sympathetic with the plight of Mr. Shabazz, his mother, and his sister, this case simply does not present the kind of “extraordinary and compelling” circumstances required to reduce a defendant's sentence under [18 U.S.C. ] § 3582(c).

In U.S. v. Wiman (USDC Indiana, 9/22/21), granted release for a man who had served more than 6 years of a 110 month sentence for armed bank robbery, based on evidence of the defendant's diagnosis of Parkinson's related dementia.  The court observed:   

Mr. Wiman is 73 years old.  He has been diagnosed with Parkinson's disease and Parkinson's dementia. Those conditions are progressing, and he has recently been transferred to a federal medical center so that he can reside in a memory disorder unit. Over the past several months, his medical records show that he has ongoing gait problems and has fallen multiple times despite using a walker. BOP medical staff also report that Mr. Wiman requires assistance with activities of daily living. Finally, BOP medical staff report that Mr. Wiman is occasionally confused.  

 

Importantly, Parkinson's disease is a progressive disorder that cannot be cured [citing Mayo Clinic website]. While medications can improve symptoms, those symptoms worsen as the condition progresses over time. That is, there is no reason to believe that Mr. Wiman's condition will improve. To the contrary, it will likely continue to deteriorate. . . . 

 

In the Wiman case, despite the government's argument that the federal prison system can provide a safe place to care for him and that his release "is not viable because he requires specialized care," the Federal District Judge granted the requested relief but stayed the date of release to permit establishment of a safe release plan including supervision, noting that if federal authorities are "unable to develop a viable release plan for Mr. Wiman despite making good-faith efforts to do so, the United State shall immediately notify the Court and explain why a viable release plan cannot be developed."  

The Challenges of Federal Oversight for Medications or Food Supplements Targeting an Aging Public

I'm finding myself spending a lot of time reading and thinking about the Food and Drug Administration (FDA) and Federal Trade Commission (FTC).  Of course, public concerns about the efficacy of Covid-10 vaccines dominate the attention of many of us working on health-related legal concerns that affect older adults.  For example, I've been researching questions about the potential for FDA approved antibody tests for Covid-19 vaccines.  

But also intriguing is a report that a slow-moving FTC suit against developers and marketers of the dietary supplement known as Prevagen may be getting closer to a possible trial date in the Southern District of New York.  A dismissal of the 2017 law suit filed jointly by the FTC and the New York Attorney General was overturned in 2019 by the Second Circuit in a summary order, concluding that the "FTC and New York have made plausible allegations that Defendants] marketing campaign for Prevagen contained deceptive representations."  For more on this and other Prevagen-related suits, see the Washington Post's recent article Does the Supplement Prevagen Improve Memory? A Court Case is Asking that Question.

Plus, there are significant questions arising in the wake of the FDA's June 7, 2021  announcement of its "accelerated" approval of aducanumab for treatment of Alzheimer's Disease.  See e.g., Recently Approved Alzheimer Drug Raises Questions that May Never Be Answered (JAMA Network, July 21, 2021).

As noted in Dr. Jason Karlawish's important new book, The Problem of Alzheimer's: How Science, Culture, and Politics Turned a Rare Disease into a Crisis and What We Can Do About It, the number of Alzheimer's patients in the U.S. will rise to an estimated 13.8 million by 2025.  The caregiver market alone is searching desperately for answers, and it can be very hard to make individual decisions about risks and benefits without trustworthy information.  This is a tough time for what we might call a pandemic crisis about "trust."