Elder Law Prof Blog

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.

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.

Student Loan Debt Webinar

Mark your calendars for this upcoming webinar on student loan debts and elders, scheduled for January 29 at 2 est.  Here's a description of this free webinar:

A growing number of older adults are carrying more student loan debt than ever before. Many took loans for their own studies while some also borrowed or cosigned loans for a child or another person. Student loan repayment—or debt collection consequences following non-payment—can impede saving for retirement or making ends meet on a fixed income. Unfortunately, even Social Security benefits can be taken to repay defaulted student loans.  

This webcast will present the basics of student loan law and a framework for issue-spotting and solving common student loan problems. Topics covered during the webcast will include: identifying a loan type/status, making loan payments affordable, evaluating loan cancellation options, stopping involuntary debt collection activity, and curing default. 

To register, click here

 

 

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.

Hebrew Home at Riverdale New York: Site for New Report on Medical Marijuana

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.

From a study published in JAMDA, the official journal for the Society of Post-Acute and Long-Term Care Medicine, this description in a press release:  

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. 

Hearing Loss: The Impact is More Than Loss of Hearing

Know anyone who has hearing loss?  Maybe you yourself suffer from hearing loss-and if not now, you may in the future. Hearing loss has ramifications beyond the loss of hearing. As the article in the New York Times explains in Hearing Loss Threatens Mind, Life and Limb "[n]ot only is poor hearing annoying and inconvenient for millions of people, especially the elderly. It is also an unmistakable health hazard, threatening mind, life and limb, that could cost Medicare much more than it would to provide hearing aids and services for every older American with hearing loss." Oh and the news doesn't get any better: "[t]wo huge new studies have demonstrated a clear association between untreated hearing loss and an increased risk of dementia, depression, falls and even cardiovascular diseases. In a significant number of people, the studies indicate, uncorrected hearing loss itself appears to be the cause of the associated health problem."

Those with age-related hearing loss can tell you it doesn't happen overnight.  In fact, because it "comes on really slowly, [it makes] it harder for people to know when to take it seriously...."  The article explains the correlation between hearing loss and the impact on the brain (fascinating yet scary). And in case you didn't know "hearing aids and accompanying services are typically not covered by medical insurance, Medicare included. Such coverage was specifically excluded when the Medicare law was passed in 1965, a time when hearing loss was not generally recognized as a medical issue and hearing aids were not very effective...." 

So, do a few things now: 1.  write your Congressperson about Medicare's coverage of hearing aids, 2. schedule an appointment to have your hearing testing and 3. turn down the volume on your devices.

Medical Marijuana for Treatment of Dementia Agitation

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. 

President Signs BOLD Infrastructure for Alzheimer's Act -- $100M Funding

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."

 

For Nursing Homes Trapped in A Cycle of Failure -- What Solutions Are Available?

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.  

High Number GA Nursing Homes Receive Medicare Penalties

Yesterday I blogged about a SNF chain in Texas filing bankruptcy.  Today, it's about Georgia's nursing homes. Georgia Health News reported last week that Medicare penalties hit most Ga. nursing homes. According to the article 75% of the SNFs in Ga have been hit with penalties regarding unnecessary hospital readmissions. Twenty-three percent received bonuses for avoiding such a problem.  "Kaiser Health News reported that hospitalizations of nursing home residents, while decreasing in recent years, remain a problem, with nearly 11 percent of patients in 2016 being sent to hospitals for conditions that might have been avoided with better medical oversight. ... The program of bonuses and penalties is intended to discourage nursing homes from discharging patients too quickly. That’s something that is financially tempting, because Medicare fully covers only the first 20 days of a stay and generally stops paying anything after 100 days...." The article includes a link to the bonuses/penalties list, which can be found here.

High Number GA Nursing Homes Receive Medicare Penalties

Yesterday I blogged about a SNF chain in Texas filing bankruptcy.  Today, it's about Georgia's nursing homes. Georgia Health News reported last week that Medicare penalties hit most Ga. nursing homes. According to the article 75% of the SNFs in Ga have been hit with penalties regarding unnecessary hospital readmissions. Twenty-three percent received bonuses for avoiding such a problem.  "Kaiser Health News reported that hospitalizations of nursing home residents, while decreasing in recent years, remain a problem, with nearly 11 percent of patients in 2016 being sent to hospitals for conditions that might have been avoided with better medical oversight. ... The program of bonuses and penalties is intended to discourage nursing homes from discharging patients too quickly. That’s something that is financially tempting, because Medicare fully covers only the first 20 days of a stay and generally stops paying anything after 100 days...." The article includes a link to the bonuses/penalties list, which can be found here.

Texas SNF Chain Files Bankruptcy

The Dallas Morning News ran a story about the largest SNF chain in Texas filing bankruptcy. Texas' largest nursing home operator files for bankruptcy, sparking concerns about patients, jobs explains that "Senior Care Centers, which operates more than 100 facilities in Texas, filed for reorganization in U.S. bankruptcy court for the Northern District of Texas on Tuesday, reporting more than $100 million in debt. It's at least the second troubled nursing care giant in the Dallas area to file for bankruptcy since late last year." What's happening? According to the chain's press release, "high rents and 'burdensome debts'" are to blame.  The chain puts as positive a spin as possible on their situation but others see cause for concern.  A Texas advocacy organization for the long-term care facilities points to the low Medicaid reimbursements. Two facilities owned by the chain were hit last year with violations stemming from Hurricane Harvey. The article notes that the bankruptcy judge has the ability to name a "patient-care ombudsmen to monitor care" as the bankruptcy moves forward, but one has not yet been appointed.

One interesting point in the article-in discussing steps taken by the chain to improve its bottom line, it sought a reduction in rent and now is in debt to one landlord for more than $31 million.

 

Rural & Tribal Justice Webinar Series from DOJ

Mark your calendars for a free webinar on December 13, 2018 from noon-1 from DOJ's Elder Justice Initiative on Resources for Financial Institutions to Prevent & Protect Against Elder Financial Exploitation.

Here is a synopsis from the website:

Bankers, brokers, and investment advisors are often some of the first trusted parties to see signs of financial exploitation. This presentation will support the work already done by financial services members and provide additional information about how to access training programs and support for tellers and other financial professionals who want to report financial exploitation and work collaboratively with others in their communities to prevent it.

Please join us for a webinar on December 13, 2018, at 1:00 p.m. e.t., on Resources for Financial Institutions To Prevent and Protect Against Elder Financial Exploitation with host Judith Kozlowski, J.D., consultant and subject matter expert with DOJ's Elder Justice Initiative, and presenter Lisa Bleier, J.D., Managing Director and Associate General Counsel at the Securities Industry and Financial Markets Association (SIFMA), and leads its Senior Investor Protection efforts. Her primary responsibilities at SIFMA include working with Members of Congress and government regulators on retirement, IRA, and executive compensation matters. Before moving to SIFMA, Ms. Bleier was Vice President and Senior Counsel at the American Bankers Association and worked on Capitol Hill. Also presenting is Billie McNeeley, Financial Exploitation Specialist, Aging & People with Disabilities at the Oregon Department of Human Services, she is a leader in developing and training bank tellers to recognize financial exploitation and move to action. Formerly with the Oregon Bankers Association, she is a national advocate for the role that small banks and credit unions can play in addressing elder financial exploitation.

They will discuss how financial professionals in small and medium-sized firms can use available tools and training to recognize and fight elder financial exploitation. The discussion includes what tellers, back-office professionals, and those in the c-suite can do to address this important issue.

To register for the webinar, click here.

Several Items Relating to Nursing Homes & Quality of Care

I have collected four  items regarding nursing homes, that  I thought I'd summarize in one  post.

First

Regular readers will recall that Florida now requires SNFs to have generators (after last year's hurricane).  Last month's Health News Florida reported that many nursing hones are seeking extensions of time on the requirement to have generators. Nursing Homes Seek More Time On Generator Requirements notes that "[m]ore than 40 percent of Florida nursing homes are asking health-care regulators for more time to meet backup-power requirements pushed by Gov. Rick Scott after Hurricane Irma last year... But ... the state’s top health-care regulator, said his agency won’t approve waiver requests for deadbeat facilities that haven’t worked over the past several months to carry out emergency backup-power plans."  Slightly more than 25% of the facilities are in compliance and over half of ALFs are.  Some ALFs not in compliance are the focus of penalties, "the state has moved ahead with penalizing a handful of ALFs that aren’t in compliance. In November, the state has entered into settlement agreements with more than a dozen ALF providers across the state to settle allegations that they failed to meet the requirements, according to a review of information on a state website."

Second

The  Washington Post ran an article last month, Overdoses, bedsores, broken bones: What happened when a private-equity firm sought to care for society’s most vulnerable. The article focused on the ownership of of a chain owned by "the Carlyle Group, one of the richest private-equity firms in the world [where], the ManorCare nursing-home chain struggled financially until it filed for bankruptcy in March. During the five years preceding the bankruptcy, the second-largest nursing-home chain in the United States exposed its roughly 25,000 patients to increasing health risks, according to inspection records analyzed by The Washington Post."  The article includes a response from the chain as well as the private equity group:

Carlyle and HCR ManorCare representatives said care at the nursing homes was never compromised by financial considerations. The cost-cutting trimmed administrative expenses, not nursing costs, they said. The number of nursing hours provided per patient stayed fairly constant in the years leading up to the bankruptcy, according to the figures that the company reported to the government.

HCR ManorCare officials also disputed the idea that quality at the homes had suffered in recent years. They said their nursing homes offered excellent service based on the ratings issued by Medicare, the federal government’s insurance program for older Americans. ManorCare homes averaged 3.2 stars in the years before bankruptcy, which was slightly below the U.S. average. Some watchdog groups, such as the Center for Medicare Advocacy, are critical of the five-star rating system, however, because it relies on unaudited data reported by nursing homes.

The article examined complaints in several states, reported on the views expressed by the private euity firm, including the role of Medicare reimbursements and reported that "[a]fter the bankruptcy,  the nursing home chain was bought by Promedica Health, a nonprofit group."

Third

Bloomberg Law reported last week that payroll data is being used to examine staffing. Sparse Nursing Home Staffing to Be Sniffed Out in Payroll Data explains that "[t]he payroll data will be used to identify nursing homes that have a significant drop in staff on weekends or have several days in a quarter without a registered nurse on site, the federal Medicare agency said Nov. 30. Nursing homes must have a registered nurse on site every day for eight hours, the agency said on its website."

Fourth,

In that same vein, Kaiser Health News reported Feds Order More Weekend Inspections Of Nursing Homes To Catch Understaffing. The payroll data mentioned in item #3 plays a role. "The federal Centers for Medicare & Medicaid Services said it will identify nursing homes for which payroll records indicate low weekend staffing or that they operate without a registered nurse. Medicare will instruct state inspectors to focus on those potential violations during visits."  Does this mean there will be a flurry of inspections? No. As the article explains, "[t]he new directive instructs inspectors to more thoroughly evaluate staffing at facilities Medicare flags. The edict does not mean a flurry of sudden inspections. Instead, Medicare wants heightened focus on those nursing homes when inspectors come for their standard reviews, which take place roughly once a year for most facilities."

Decline in US Life Expectancy

U.S. life expectancy has declined. What's up with that? According to an article in the Washington Post, this is not good news for us. U.S. life expectancy declines again, a dismal trend not seen since World War I emphasizes the impact of the opioid and suicide crises.

The data continued the longest sustained decline in expected life span at birth in a century, an appalling performance not seen in the United States since 1915 through 1918. That four-year period included World War I and a flu pandemic that killed 675,000 people in the United States and perhaps 50 million worldwide.

The U.S. trend seems to be opposite of what is happening in other countries, and although the decline may not seem very large, it is still part of an overall concerning trend. The numbers re: opioid deaths cited in the article are shocking. Read the article to absorb the data and look at the geographical info detailing where opioid deaths are highest and lowest.  It's just not drug deaths attributing to the decline. "Other factors in the life expectancy decline include a spike in deaths from flu last winter and increases in deaths from chronic lower respiratory diseases, Alz­heimer’s disease, strokes and suicide. Deaths from heart disease, the No. 1 killer of Americans, which had been declining until 2011, continued to level off. Deaths from cancer continued their long, steady, downward trend."

Disaster Recovery Resources

The National Consumer Law Center sent out an email listing resources for attorneys and others helping elders recover from natural disasters. The email described the situation:

Older adults living in communities hit by natural disasters disproportionately suffer emotional trauma and financial hardship after the event. Age-related changes, including decreases in mobility and cognitive abilities make it harder for older adults to navigate the recovery process and access resources to repair or rebuild their homes. Once the immediate danger has passed, older adults will need assistance from insurance, government, and nonprofit organizations or other aid agencies to rebuild their home and community support system. In the days and weeks after the disaster older adults are forced to deal with a wide variety of issues, including home repair, reconnecting utilities, and making payments, including mortgage, credit cards, and student loans. Unlike many others affected by disasters, older adults may have fewer private assets to aid in recovery making the process to rebuild financially more difficult. Here are some resources the National Consumer Law Center (NCLC) has compiled to help guide advocates in advising older adults.

The Disaster Relief & Consumer Protection Project  offers information and resources in several categories. For individuals who are older, the resources address the following:

• Issue Brief: Assisting Homeowners with Reverse Mortgages after a Natural Disaster: A Guide for Advocates, October 2018

• Webinar: Assisting Older Homeowners after a Natural Disaster (National Center on Law and Elder Rights), June 20, 2018:

  • Free Webcast: Assisting Older Homeowners After a Natural Disaster, June 2018

  • Issue Brief: Helping Older Homeowners Recover from Natural Disasters, June 2018

  • Presentation

Elder Justice Coordinating Council-Save the Date

The next meeting for the Elder Justice Coordinating Council is December 6, 2018. The EJCC was created as part of the Elder Justice Act and is intended 

to coordinate activities related to elder abuse, neglect, and exploitation across the federal government. The Elder Justice Coordinating Council is directed by the Office of the Secretary of Health and Human Services and the Secretary serves as the Chair of the Council. The HHS Secretary has assigned responsibility for implementing the Coordinating Council to the Administration on Aging (AoA) within ACL. AoA has long been engaged in efforts to protect older individuals from elder abuse including financial exploitation, physical abuse, neglect, psychological abuse, and sexual abuse. Through the Older Americans Act, AoA endeavors preserve the rights of older people and protect those who may not be able to protect themselves.

The final 2018 meeting is set for December 6, 2018 from 9:30-noon. You can register here to attend.  It will also be live streamed.

Filial Friday: "Elternunterhalt" -- An Update on Germany's Approach to Filial Support Law

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). 

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Change in Process to Appoint Administrative Judges

The Washington Post recently ran an article about changes to the system of selecting Veterans law judges (or ALJs) within the Board of Veterans Appeals and whether that is affecting their impartiality.  The story, I’ve never seen these positions politicized’: White House rejection of veterans judges raises concerns of partisanship is primarily about the rejection of candidates for positions within the Board of Veterans Appeals. This excerpt from the article gives you the background

The Board of Veterans’ Appeals has long filled a nonpartisan role in the federal government, run by dozens of judges charged with sorting through a thicket of regulations to determine whether an injured veteran is entitled to lifetime benefits.

But this summer, the White House rejected half of the candidates selected by the board chairwoman to serve as administrative judges, who make rulings on the disability claims. The rejections came after the White House required them to disclose their party affiliation and other details of their political leanings, according to documents viewed by The Washington Post.

Such questions had not been asked of judge candidates in the past, according to former judges and board staff.

As part of the process, the candidates were asked to provide links to their social media profiles and disclose whether they had ever given a speech to Congress, spoken at a political convention, appeared on talk radio, or published an opinion piece in a conservative forum such as Breitbart News or a liberal one such as Mother Jones, according to one candidate, who requested anonymity because the person is not authorized to speak to the media.

The rejected applicants are three Democrats and an independent. Of the four accepted by the White House and sworn in last week, three are Republicans, and one has no party affiliation but has voted in GOP primaries, according to documents and interviews.

The article quotes an administration official who explained that this is designed to get the best people for the job. But remember another change that happened this summer, about which we previously blogged. "The new approach at VA comes as the White House for the first time turned another class of administrative judges from civil servants into political appointees, reflecting an emerging conservative legal movement to involve the president in naming government adjudicators... Citing a Supreme Court decision, the Trump administration announced in July that administrative law judges, most of whom rule on disability claims for the Social Security Administration, would now be appointed by the president." The rest of the article examines the caseload of veterans appeals and the need for judges for the appeals system.

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.