Tuesday, January 14, 2020

Recent Interesting Cases

Getting ready for the start of the Spring 2020 semester.  I was looking through a list of recent cases from the AARP Foundation  in which they had filed amicus briefs. Docket: Recent or Open Amicus Cases includes  citations to the cases, summaries of the cases and copies of the amicus briefs. I think these are useful to give us some up-to-date info about litigation issues, and can also serve to provide topic ideas for our students who might be writing scholarly papers on an elder law topic. Check it out!

January 14, 2020 in Consumer Information, Current Affairs, Federal Cases, State Cases | Permalink | Comments (0)

Wednesday, January 8, 2020

Elder Justice Mapping Webinar

Register now for an upcoming webinar from the Department of Justice webinar on Mapping Elder Justice Networks.  The webinar is scheduled for January 21, 2020  at 2 p.m. est.   Here is info about the webinar

Join us for the webinar, Mapping Elder Justice Networks, where we will introduce the new Elder Justice Networks Locator. 

The Locator is a map designed to help elder justice professionals to locate and collaborate with elder justice networks/teams across the nation.  Networks will be added in an on-going fashion.

This webinar will discuss the development of this resource, walk through how to find and use the Locator, and explain how to submit your network for inclusion.

Mapping Elder Justice Networks

Talitha Guinn-Shaver, Presenter

The Locator represents the teams that have provided information to participate in this project. Networks interested in being included in the Locator may submit their network name, type, address, web address and email to elder.justice@usdoj.gov. Please note that for-profit organizations and dot coms cannot be included.  Other rules may apply.  Submission is not a guarantee of inclusion in the Locator.

To register for this webinar, click here.

January 8, 2020 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Programs/CLEs, State Cases, Webinars | Permalink | Comments (0)

Monday, November 18, 2019

Judgment Dismissing Suit Against University's Elder Law Clinic & Government Officials Affirmed by Louisiana Appellate Court (But There Is More to the History for Professors to Discuss)

Last week, the Louisiana Court of Appeals affirmed the dismissal of a lawsuit involving a will that was allegedly prepared by someone in the Southern University Elder Law Clinic.  The complicated proceedings involve a challenge by an elderly decedent's only surviving child, who was not named as a beneficiary in the new plan. Instead the new will created a testamentary trust benefiting the decedent's great-grandchildren and great-niece.  The daughter's first suit sought to annul her mother's will and remove the person nominated in the will to be executor and trustee. In addition, the Elder Law Clinic's Director was allegedly named in the will to serve as the estate's attorney. That suit was reportedly settled after a third person was named by the court as executor and trustee for the mother's estate, presumably also ending any role for the Clinic or the Clinic Director in the estate administration. 

Less than a year later, the daughter initiated a second suit "for damages," naming the Director of the Elder Law Clinic and government officials as defendants and alleging, in essence, the defendants conspired to cause the decedent to believe immediate family members were stealing from her.  In the most recent ruling, the core issue was whether the daughter had standing to bring such a cause of action, after dropping her challenge to the will itself.  The Court of Appeals concluded the only party with standing to bring such a suit was the executor of the decedent's estate, explaining:

Furthermore, Ms. Antoine [the daughter] acknowledged she is not a named legatee in her mother’s will. Additionally, she is not a forced heir since she was over the age of twenty-three when her mother died, and she does not allege she was permanently incapable of caring for herself due to mental incapacity or physical infirmity.... Because Ms. Antoine is neither a forced heir nor a legatee named in Ms. Plummer’s will, she has no interest in her mother’s estate. Despite Ms. Antoine’s arguments to the contrary, any rights she may have had if her mother had died intestate are irrelevant since her mother died testate....  Accordingly, the trial court correctly found that Ms. Antoine had no right of action and sustained the exceptions of no right of action.

For more, see Antoine v. East Baton Rouge Council on Aging, et al, at 2019 WL 6044634 (Ct. App. First Cir., Louisiana, November 15, 2019).

As a former director of an elder law clinic, I can empathize with challenges that can arise in student-staffed clinics.  We used to caution our law students that there is no such thing as a "simple will" that seeks to disinherit a close family member -- emotions run high in those cases, especially if there are significant assets -- and we recommended seasoned attorneys for such matters. 

It turns out the Louisiana matter is even more of a cautionary tale than I first thought, and not one with a clear message. 

While researching some of the history of the will contest, I learned there was a third suit, a civil rights claim, in which the Director of Southern University's Elder Law Clinic, a tenured professor, is the plaintiff, alleging she was wrongfully terminated by the University because of matters alleged in the Antoine suits.  

In September 2019, the United States District Court for the Northern District of Louisiana dismissed the former faculty member's  suit.  For more on that, see Jackson v. Pierre, et al., 2019 WL 4739294 (U.S.D.C., N.D. Louisiana,  September 27, 2019).  Although the dismissal turns on fairly standard procedural issues, those who teach estate planning courses, or who supervise either law school clinic programs or law school-affiliated will-drafting programs, should find it worth reading and discussing.  

November 18, 2019 in Estates and Trusts, Federal Cases, State Cases | Permalink | Comments (0)

Wednesday, August 28, 2019

Veterans Victims of Consumer Scam

The New York Times recently reported indictments against five perpetrators of an identity theft scam that targeted vets.

5 Indicted in Identity Theft Scheme That Bilked Millions From Veterans explains how the scam worked:

First, they secretly photographed the Social Security and bank account numbers of thousands of veterans and senior military members on a computer screen at a United States Army base in South Korea.

Then, they used the personal information to withdraw or reroute millions of dollars in disability benefits and other payments made to veterans. The stolen funds were later wired to the bank accounts of so-called money mules and laundered so that they could not be traced.

The perpetrators were charged with aggravated identity theft, wire fraud and conspiracy according to the article.  Described as the largest ever perpetrated against military personnel, "the personal information of more than 3,000 veterans and military personnel had been compromised over a period from 2014 to 2019. Many of the victims were disabled and older, and were unlikely to access their account information online." DOJ is still looking to identify victims.  "The Justice Department and Veterans Affairs are in the process of notifying victims and trying to help them recover lost funds."

August 28, 2019 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other, Veterans | Permalink | Comments (0)

Tuesday, August 27, 2019

Medicare Observation Status: Post-Trial Report

I reported a couple of weeks ago about the trial in federal court in Connecticut on observation status. The trial has concluded. Here is an update from the Center for Medicare Advocacy

Since 2011 the Center for Medicare Advocacy has been pursuing a nationwide class action lawsuit seeking an appeal for Medicare beneficiaries who are classified as hospital outpatients in observation status. (Alexander v. Azar, 3:11-cv-1703, U.S. District Court, Connecticut.) Co-counsels in the case are Wilson, Sonsini, Goodrich & Rosati and Justice in Aging.

The Alexander trial was held before US District Court Judge Michael Shea from August 12 – 20, 2019. The Judge ordered post-trial briefing, which is expected to take approximately 75 days. Then the parties will await Judge Shea’s decision.

Medicare beneficiaries who received “observation services” in a hospital on or after January 1, 2009 and either did not have Medicare Part B, or, were hospitalized for at least three consecutive days but not three days as an inpatient, may be a member of the Alexander class. No action is required to “join” the class. Individuals who meet the class definition, are in the class (note that the class definition is subject to change). We recommend saving paperwork related to the hospital observation status and to costs that may have resulted from it.

August 27, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink

Sunday, August 18, 2019

Observation status trial

Last week, the class action suit against CMS on observation status finally went to trial.  According to the story from the Medicare Rights Center, Lawsuit Seeks to Improve Medicare Beneficiary Access to Nursing Facilities explains the importance of the case, as the trial started last week:

Because an observation stay is not officially considered an inpatient stay, it does not count as a qualifying hospital stay for purposes of Medicare SNF coverage—which means Medicare will not pay for any subsequent SNF care. This leaves patients on the hook for the entire cost of a needed SNF stay—potentially thousands of dollars.  Beneficiaries unable to afford this care may self-discharge against medical advice and return home before they are physically or mentally ready, and potentially suffer further devastating and expensive acute health effects.

Currently, people with Medicare cannot appeal the decision to classify a hospital stay as an outpatient stay, but a court case—Alexander v. Azar—may change that. In 2011, seven plaintiffs filed a class action lawsuit to try to gain the right to appeal the decision to classify them as outpatients in observation stay instead of as inpatients who would potentially be eligible for SNF coverage. After many twists and turns, the case has finally made it to trial.

More information about the trial that got underway last week was provided in a Kaiser Health News article, Class-Action Lawsuit Seeks To Let Medicare Patients Appeal Gap in Nursing Home Coverage which contains lots of interesting info about the issue and the litigation.  For example, "'HHS’ Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It’s No. 1 on a list issued last month of the 25 most important inspector general’s recommendations the agency has failed to implement." The importance of this case can't be emphasized enough.  I'll update you when I know more.

August 18, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Other | Permalink | Comments (0)

Monday, July 15, 2019

Low SNF Staffing Numbers

According to a recent story published in Modern Healthcare,  Nursing home staffing levels often fall below CMS expectationsfocuses on a new study that "[n]ursing home staffing levels are often lower than what facilities report, which could compromise care quality, new research shows....Self-reported direct staffing time per resident was higher than the CMS' payroll-based metrics 70% of the time, according to a new study published in Health Affairs. Staffing levels were significantly lower during the weekends, particularly for registered nurses."

We know the importance of staffing as a quality measure and ensuring quality of care, so this study is very important. "Researchers compared facility-reported staffing and resident census data and annual inspection survey dates from the Certification and Survey Provider Enhanced Reports to the CMS' long-term care facility Staffing Payroll-Based Journal from 2017 to 2018. The payroll-based data offered a more granular look, showing how staffing evolves over time rather than relying on static point-in-time estimates that were subject to reporting bias and rarely audited...."

When comparing for-profit SNFs with NFP SNFS, the researchers found the for-profits "more likely to report higher staffing numbers ... and [s]taffing levels increased before and during the times of the annual surveys and dropped off after." 

The use of payroll data to determine staffing levels has only been in effect a little over a year.  The story focuses specifically just on staffing levels. A log-in is required to access the study.

July 15, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Friday, June 28, 2019

Report on Unreported Abuse & Neglect at SNFs

The Office of Inspector General for Health & Human Services issued a report this month, Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated.

Here's a summary of their findings

We determined that an estimated one in five high-risk hospital ER Medicare claims for treatment provided in calendar year 2016werethe result of potential abuse or neglect, including injury of unknown source, of beneficiaries residing in a SNF.We determined that SNFs failed to report many of these incidents to the Survey Agencies in accordance with applicable Federal requirements. We also determined that several Survey Agencies failed to report some findings of substantiated abuse to local law enforcement. Lastly, we determined that CMS does not require all incidents of potential abuse or neglect and related referrals made to law enforcement and other agencies to be recorded and tracked in the Automated Survey Processing Environment Complaints/Incidents Tracking System. Preventing, detecting, and combating elder abuse requires CMS, Survey Agencies, and SNFs to meet their responsibilities.

OIG's recommendations include

  • work with the Survey Agencies to improve training for staff of SNFs on how to identify and report incidents of potential abuse or neglect of Medicare beneficiaries,
  • clarify guidance to clearly define and provide examples of incidents of potential abuse or neglect,
  • require the Survey Agencies to record and track all incidents of potential abuse or neglect in SNFs and referrals made to local law enforcement and other agencies, and
  • monitor the Survey Agenciesreporting of findings of substantiated abuse to local law enforcement.

The OIG full report is available here.

June 28, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Other | Permalink | Comments (0)

Wednesday, June 19, 2019

DOJ Transnational Elder Fraud Strike Force

DOJ announced the creation of a multi-agency strike force to fight elder fraud. Justice Department Announces New Transnational Elder Fraud Strike Force. Law Enforcement Effort Will Coordinate Action Against Foreign Fraud Schemes that Target American Seniors announces

the establishment of the Transnational Elder Fraud Strike Force, a joint law enforcement effort that brings together the resources and expertise of the Department of Justice’s Consumer Protection Branch, the U.S. Attorneys’ Offices for six federal districts, the FBI, the U.S. Postal Inspection Service, and other organizations. The Strike Force will focus on investigating and prosecuting individuals and entities associated with foreign-based fraud schemes that disproportionately affect American seniors. These include telemarketing, mass-mailing, and tech-support fraud schemes.

The Transnational Elder Fraud Strike Force will be comprised of prosecutors and data analysts from the Consumer Protection Branch, prosecutors with six U.S. Attorneys’ Offices (Central District of California, Middle and Southern Districts of Florida, Northern District of Georgia, Eastern District of New York, Southern District of Texas), FBI special agents, Postal Inspectors, and numerous other law enforcement personnel. The Strike Force will also collaborate with the Federal Trade Commission and industry partners, who have pledged to engage with the Department to help end the scourge of elder fraud. It will further benefit from the help of the Elder Justice Coordinators now assigned in every U.S. Attorney’s Office.

June 19, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Monday, June 17, 2019

GAO Report on Elder Justice

The Government Accounting Office released a new report on Elder Justice.  Elder Justice: Goals and Outcome Measures Would Provide DOJ with Clear Direction and a Means to Assess Its Efforts explains the reason for this report

Why GAO Did This Study

Researchers estimate that as many as 1 in 10 older adults in the United States—age 60 or older—experience abuse each year. Elder abuse may involve physical, sexual, emotional, or financial abuse or neglect. It can occur by family, guardians, or caregivers as well as by strangers and international criminal enterprises, which operate schemes for monetary gain or to facilitate other criminal activities. According to media reports and congressional testimony, some older U.S. citizens who have traveled abroad have unwittingly participated in illicit activities, and in some cases, have been arrested in foreign countries.

EAPPA included a provision for GAO to review elder justice efforts in the federal criminal justice system. This report examines (1) the ways DOJ works to address crimes against older adults, and to what extent DOJ is planning for and assessing its efforts; and (2) how the Departments of State and Homeland Security address the arrest of older U.S. citizens abroad, including arrests involving international criminal enterprises. GAO reviewed agency policy documents, and interviewed agency officials, as well as a nongeneralizable sample of elder abuse stakeholders and state and local officials selected for their experience in this area.

Along with offering examples of scams and frauds targeting elders, the GAO report included a recommendation for DOJ "that DOJ develop and document elder justice goals and outcome measures to better guide its elder justice efforts."

The full report is available here.

 

 

June 17, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Thursday, June 13, 2019

Update on Litigation of Medicare's 2 Midnight Rule

The Center for Medicare Advocacy (CMA-full disclosure, I'm on their board) has been litigating with CMS on the observation status issue. The latest litigation on the observation status, Alexander v. Azar, has a new opinion decided on June 4, 2019.  On a motion for clarification and reconsideration filed by CMS, as well as a motion to seal, the Court in the June 4 order grants in part and denies in part the motion to seal and denies the motion for reconsideration and clarification.

Stay tuned.  This case is going to trial in the fall!

June 13, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, May 8, 2019

Identity Theft Placemat & Guide

The Consumer Financial Protection Bureau released two items to help us in the fight against identity theft. The first is a bit unique-a placemat, "Identity protection crossword puzzle" which is described as an "interactive educational placemat is for meal sites, senior centers, and other places older adults gather and are a great way to share information at mealtime in groups of all sizes." The second is the Identity Protection Guide, Protect Your Identity: What Older Adults Should Know providing "steps to help you protect your personal information and explores several options to help you decide what’s right for your situation. The guide can be ordered separately and should be included with each Identity Theft Placemat."

May 8, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Other | Permalink | Comments (0)

Tuesday, April 2, 2019

Nursing Home Oversight-Two Updates

Following up on Katherine's important post, I was noticing a couple of news items regarding nursing home regulation I wanted to share.  A couple of weeks ago Bloomberg Law ran this article, Nursing Homes Want Care Disputes Kept Out of Court to Curb Costs. The article focuses on the use of pre-dispute arbitration clauses in nursing home admission contracts. You may recall that CMS was going to ban their use but the current administration changed directions. "The White House Office of Management and Budget is reviewing a Health and Human Services regulation that would allow nursing homes that receive Medicaid and Medicare funding—which is nearly all of them—to enforce those “pre-dispute” arbitration clauses. The Trump administration proposed the change in June 2017."

It's no surprise when I tell you that there are those supporting the use of pre-dispute arbitration clauses and those that oppose them.  AARP's legislative policy arm has opposed the current administration's position on their use, arguing "that the provisions of [Trump’s] proposed rule would very likely have dangerous and harmful impacts on nursing home residents, as well as their families.” 

As the use of mandatory pre-dispute arbitration clauses in contracts grows, there is some push back. "Arbitration clauses are commonplace in contracts for cellphones, credit cards, gym memberships, and other services, but there’s a growing movement to limit their use. Last month, House Democrats introduced the Forced Arbitration Injustice Reversal Act, which would ban mandatory arbitration clauses in consumer, employment, and other contracts." 

Congress, at least in 2017, and the current administration seem to be in favor of the use of the clauses, since in 2017 the Republican members of Congress "voted to repeal a Consumer Financial Protection Bureau rule banning mandatory arbitration clauses in financial contracts" which the President signed into law.

Admittedly, there are advantages to arbitration for certain kinds of cases.  Whether they are appropriate for resolution of cases involving nursing home residents is one of those "agree to disagree" issues for many.

Then last week, the Washington Post published an opinion, The hidden victims of Trump’s deregulatory agenda: Nursing home residents looks at the impact of the changes from the administration, specifically "[t]he number of per-day fines plummeted. The ban on mandatory arbitration was blocked. [The President] even delayed the enforcement of new health and safety requirements by 18 months, much to the delight of the nursing home industry."

Regarding the drop in fines, so what does this mean? The author says this means "less accountability for nursing homes that treat their residents poorly. The Kaiser Family Foundation recently published an analysis that found that under the Trump administration, the average fine levied against nursing homes that have endangered or injured residents dropped from a high of $41,260 in 2016 to $28,405 in the first quarter of 2018. That may not look like an enormous dip, but that average likely reflects a shift back toward levying one-off fines for violations."

CMS disagrees. Although the amount of penalties may have decreased, they point out that the number of fines being issued has gone up.  The author takes a contrary view, " the Kaiser analysis found that the administration has issued fewer penalties in cases in which nursing homes put residents in immediate jeopardy of harm. And the fines CMS did issue averaged 18 percent less than the ones levied at the end of the Obama administration."

For those Special Focus Facilities, one expert offers that "the Trump administration has largely pulled back its enforcement of them, issuing increasingly small fines even though the government continued to cite them for serious violations, according to [the expert's] most recent analysis of CMS data in January."

This is an important issue and one that is far from being resolved. So, stay tuned.

April 2, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, March 13, 2019

New Report from Consumer Financial Protection Bureau

The Consumer Financial Protection Bureau (CFPB) released a new report at the end of February, Suspicious Activity Reports on Elder Financial Exploitation: Issues and Trends.

Here is a summary of the report

Since 2013, financial institutions have reported to the federal government over 180,000 suspicious activities targeting older adults, involving a total of more than $6 billion. The reports provide unique data on these suspicious activities, which can enhance ongoing efforts to prevent elder financial exploitation and to punish wrongdoers.

This report presents the findings of a study of elder financial exploitation Suspicious Activity Reports (EFE SARs) filed with the federal government by financial institutions such as banks and money services businesses between 2013 and 2017. This is the first public analysis of EFE SAR filings since the Financial Crimes Enforcement Network (FinCEN), which receives and maintains the database of SARs, introduced electronic SAR filing with a designated category for “elder financial exploitation” in 2013. The findings provide an opportunity to better understand the complex problem of elder financial exploitation and to identify ways to improve prevention and response.

The full report is available here.

The key findings of the report provide some sobering data:

SAR filings on elder financial exploitation quadrupled from 2013 to 2017. In 2017, elder financial exploitation (EFE) SARs totaled 63,500. Based on recent prevalence studies, these 2017 SARs likely represent a tiny fraction of actual incidents of elder financial exploitation.

Money services businesses have filed an increasing share of EFE SARs.In 2016, money services business (MSB) filings surpassed depository institution (DI) filings. In 2017, MSB SARs comprised 58 percent of EFE SARs, compared to 15 percent in 2013.

Financial institutions reported a total of $1.7 billion in suspicious activities in 2017, including actual losses and attempts to steal the older adults’ funds

Nearly 80 percent of EFE SARs involved a monetary loss to older adults and/or filers (i.e. financial institutions).

In EFE SARs involving a loss to an older adult, the average amount lost was $34,200. In 7 percent of these EFE SARs, the loss exceeded $100,000.

When a filer lost money, the average loss per filer was $16,700.

One third of the individuals who lost money were ages 80 and older.

Adults ages 70 to 79 had the highest average monetary loss ($45,300).

Losses were greater when the older adult knew the suspect. The average loss per person was about $50,000 when the older adult knew the suspect and $17,000 when the suspect was a stranger.

Types of suspicious activity varied significantly by filer.When the filer was an MSB, 69 percent of EFE SARs described scams by strangers. DI filings, in contrast, involved an array of financial crimes, with 27 percent involving stranger scams.

More than half of EFE SARs involved a money transfer. The second-most common financial product used to move funds was a checking or savings account (44 percent).

Checking or savings accounts had the highest monetary losses. The average monetary loss to the older adult was $48,300 for EFE SARs involving a checking or savings account while the average loss was $32,800 for EFE SARs involving a money transfer.

The suspicious activity reported in an EFE SAR took place, on average, over a four-month period.

Fewer than one-third of EFE SARs indicated that the filer reported the suspicious activity to a local, state, or federal authority. Only one percent of MSB SARs stated that the MSB reported the suspicious activity in the SAR to a government entity such as adult protective services or law enforcement.

Read the entire report. The information is important.

Thanks to Julie Childs from the DOJ Elder Justice Initiative for alerting me to this new report.

March 13, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, Statistics | Permalink | Comments (0)

Monday, March 11, 2019

Justice Department Announces Elder Fraud Sweep

On March 7, 2019, U.S. DOJ announced the biggest U.S. elder fraud sweep. Justice Department Coordinates Largest-Ever Nationwide Elder Fraud Sweep. Attorney General Focuses on Threats Posed by Technical-Support Fraud offers a look at the staggering amount of elder fraud.

The cases during this sweep involved more than 260 defendants from around the globe who victimized more than two million Americans, most of them elderly. [DOJ] took action in every federal district across the country, through the filing of criminal or civil cases or through consumer education efforts. In each case, offenders allegedly engaged in financial schemes that targeted or largely affected seniors. In total, the charged elder fraud schemes caused alleged losses of millions of more dollars than last year, putting the total alleged losses at this year’s sweep at over three fourths of one billion dollars.

Want to see the results of the sweep in your state?  Click here.

The sweep included tech support fraud, mass mailing fraud and  money mules.  Consumer education was also part of the effort,

[DOJ] and its law enforcement partners focused the sweep’s public education campaign on technical-support fraud, given the widespread harm such schemes are causing. The FTC and State Attorneys General had an important role in designing and disseminating messaging material intended to warn consumers and businesses.

Public education outreach is being conducted by various state and federal agencies, including Senior Corps, a national service program administered by the federal agency the Corporation for National and Community Service, to educate seniors and prevent further victimization. The Senior Corps program engages more than 245,000 older adults in intensive service each year, who in turn, serve more than 840,000 additional seniors, including 332,000 veterans. Information on Senior Corps’ efforts to reduce elder fraud can be found here.

Click here to read the full press release. The AG's remarks are available here.

Thanks to my colleague, Professor Podgor, for alerting me to the press releases.

March 11, 2019 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other | Permalink

Tuesday, January 15, 2019

More on Merit-Based ALJ Hiring

Health & Human Services has posted information on their blog about how they are implementing the new hiring process for ALJs. Establishing a New Merit-Based Process for Appointing Administrative Law Judges at HHS explains the new process, the reasons for it, and when it became effective.

HHS is announcing how the department will implement a new ALJ selection and appointment process. The department’s ALJs work for the Office of Medicare Hearings and Appeals (101) and the Departmental Appeals Board (13). The DAB also has seven administrative appeals judges and five Departmental Appeals Board members, and the new ALJ selection and appointment process will apply to these “comparable officials” as well.

The new HHS ALJ selection and appointment process - PDF is effective immediately and is described on the websites of the OMHA and the DAB.

This process is described in the post as merit-based and does not require consultation with anyone outside of the process.  The process is described in detail in a 4 page document from November, 2018, available here.

To understand the significance of this change, read my blog post from October 26, 2018 here.

January 15, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Sunday, October 21, 2018

FTC Releases New Report on Older Consumers

The Federal Trade Commission has released a new report, Protecting Older Consumers: 2017-2018: A Report to Congress of the Federal Trade Commission. The FTC report, available here, runs 41 pages and is divided into sections addressing effective strategies, enforcement activities, and outreach and education.  For those of you unfamiliar with the FTC's work on behalf of consumers who are older, the report explains

As the nation’s primary consumer protection agency, the Federal Trade Commission (“FTC” or “Commission”) has a broad mandate to protect consumers from unfair, deceptive, or fraudulent practices in the marketplace. It does this by, among other things, filing law enforcement actions to stop unlawful practices and educating the public about consumer protection issues. Through strategic initiatives, research, and collaboration with federal, state, international, and private sector partners, the FTC targets its efforts to achieve the maximum benefits for consumers, including older adults.

The Commission’s anti-fraud program tracks down and stops some of the most pernicious frauds that prey on U.S. consumers, such as imposter scams, deceptive credit schemes, prize promotion fraud, business opportunity scams, and more. In addition, the advertising substantiation program protects consumers from the harm caused by unsubstantiated product claims, such as fake opioid addiction treatments and cancer cure products. The agency also works to protect consumer privacy and data security, combat illegal telemarketing and email spam, and enforce a variety of consumer protection rules and other statutes covering topics such as funeral industry practices, used car sales, and consumer
product warranty protections, to name only a few. These programs provide tremendous benefits to older and younger consumers. (citations omitted).

Be sure to check out Appendix A-the table of cases from the FTC for year 2018.

October 21, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations | Permalink

Monday, October 15, 2018

Rural and Tribal Elder Justice Summit

Registration is now open for the Rural and Tribal Elder Justice Summit scheduled for November 14-15, 2018 in Des Moines, Iowa. Here is info about the program

On World Elder Abuse Awareness Day 2018, the U.S. Departments of Justice and Agriculture announced a joint Statement of Action to promote elder justice in rural and tribal communities. Although more than 20 percent of older adults live in rural America, rural and tribal communities face unique challenges in their efforts to combat elder abuse, neglect, and financial exploitation.

To advance this priority, the Department of Justice is hosting a Rural and Tribal Elder Justice Summit on November 14–15, in Des Moines, Iowa. This Summit will bring together a diverse group of experts and elder justice professionals to: (1) identify the challenges rural and tribal communities face in responding to elder abuse; (2) identify promising practices, resources, and tools available to rural and tribal communities; and (3) explore what more can be done to break down silos and foster greater collaboration at the tribal, local, state, and federal levels.

Please join us for this important event and help us to advance elder justice in rural and tribal communities.

For more information about the summit and rural elder justice topics, please visit the Elder Justice Initiative website

 

To register for the summit, click here.

October 15, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 11, 2018

Attracting Adequate, Qualified Staff: The Impact of Payment Issues in Long-Term Care

I've been reading articles for several weeks about a "troubled" nursing home in Connecticut where staff members were reportedly being paid late, and not receiving payments on related benefit claims (including health care and pensions).   

The reports sound unusually mysterious, with indications of an executive's "loan" to a related charity from operating reserves.   Suddenly more than $4 million was apparently restored to a key pension account:  

As News 12 has reported, federal agents raided the center back in May. When the raid happened, that account was down to $800. For years, workers have complained about missing retirement money. In a lawsuit, the Labor Department claims the facility's owner illegally funneled their money into his own private charity.

 

Now, according to new court documents, the $4 million was unexpectedly deposited into the pension account last week. It's unclear where the money came from, and even the bankruptcy trustee running the facility was unsure.

 

"I don't truly know the source, but I do know that there's $4.1 million in this bank," bankruptcy trustee Jon Newton said at a court hearing yesterday.

 

But in a recent court hearing, owner Chaim Stern's lawyer said the money "was meant to represent the $3.6 million transferred from the (retirement) plan to Em Kol Chai." That's the charity authorities say Stern controls.

 

Workers may not get as much of that money as they think. Bridgeport Health Care has a long list of creditors, and they could potentially get a share.

 

News 12 reported back in July that part of the facility, called Bridgeport Manor, is shutting down. Lawyers say they hope to wrap that process up within a month.

For more read:  Millions Mysteriously Appear in Account of Troubled Nursing Home.

September 11, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)

Friday, August 31, 2018

How Should Non-Wage Compensation of Live-In Caregivers Be Analyzed for Fairness?

Professors Adam Hofri-Winogradow (Hebrew University of Jerusalem) and Richard Kaplan (University of Illinois) have an interesting new article, addressing how different countries analyze property transfers to caregivers.   They recognize that, broadly speaking, reviewing authorities tend to treat family members differently than they treat professional caregivers when it comes to questions about undue influence or other theories that may invalidate a transfer as unfair. Further, they recognize that policies may differ for live-in caregivers versus hourly helpers.   Also, on a comparative basis, countries may differ on how a governmental unit provides employment-based public benefits for home carers, thus perhaps influencing how family members view pre- and post-death gifts to caregivers.

From the abstract:   

In this Article, we examine how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient, and claims against the recipient's estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the United States, a model funded exclusively by public money is probably impossible.

For more, read Property Transfers to Caregivers: A Comparative Analysis, published in June by the Iowa Law Review.  

August 31, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, International, Property Management, State Cases | Permalink | Comments (0)