Elder Law Prof Blog

Loss of the Ability to Evaluate Risk vs "Winning the Sweepstakes"

When I was a child, my grandfather had an ongoing relationship with Readers' Digest.  Not just their magazine or their condensed books, but with the company itself. He was always convinced he had won their latest sweepstakes and his big-dollar prize was just around the corner.  It was a bit of a family legend.  

Recently an older friend, who had celebrated a 90th birthday a few months back, called to ask for help in filling out forms for the Publishers Clearing House sweepstakes.  Over the years my friend had purchased various items from PCH, including a set of solar lights that never worked properly.   The odds of actually "winning" the PCH sweepstakes are astronomically high.  My friend thought buying something would increase the odds of winning no matter how often I explained over the years that was not true.  Sometimes new "stuff" would appear in the mail, along with a corresponding bill for the "order."  It was hard to know whether my friend had actually ordered the items.

This time, my friend was thrilled to explain the long-awaited victory was almost here -- as the latest mailing "guaranteed" the check would be arriving by mail and all that was needed was timely confirmation by return mail of a willingness to accept the prize.  Two envelopes were provided to help in "claiming" the victory.  

I walked patiently through the colorful documents with my friend, pointing out all my examples of clever language.   I showed my friend a copy of a case, Harris v.  Publishers Clearing House, an unofficially reported  federal decision from 2016, that described another person who also thought he had won for the exact same reasons as my friend. The prize never came. He was suing -- without the benefit of an attorney --  for breach of contract, fraud, and alleged violations of Deceptive Mail Prevention and Enforcement Act, 39 U.S.C. Section 2001 et seq.  But the judge ruled against him, dismissing the case with prejudice while explaining the language in the letters "merely informed the plaintiff that he had a chance to win. . . . "  

My friend seemed to understand what I was saying.  My friend asked my opinion -- "what should we do?"  I suggested we tear up the letters and throw them in the trash.  My friend put the documents -- untorn -- in the waste can.  We talked about the fact that continuing to participate with this company was wasting money, and was also an example of "feeding the troll," encouraging the company to keep sending those "too-good-to-be-true" letters to other people.   We  ended our discussion with a good hug.

The next morning I stopped by to drop off newspapers and a fresh donut.  As I waited for my friend, I saw the top of two "official" envelopes addressed to Publishers Clearing House peeking out of the top of the home's mail box for pick up -- with fresh stamps.   I couldn't help but sigh.  

Here is a link to a science-based discussion about early assessment of cognitive impairment, and the importance of histories provided by a reliable informant or care partner for diagnostic assessment.  Victimization in scams is one of several behavioral examples listed in the article that can point to changes in cognition, associated with the loss of the ability to evaluate risk or odds of winning. 

Isn't it sad that it might be easier to diagnose cognitive impairment than to get a ruling finding deceptive trade practices?  

Within 10 Minutes, Three Friends Sent Me Links to the Same NYT Commentary on Aging

I'm going to try not to take this personally, but I realized that within the space of a few minutes three friends had emailed me links to the same New York Times opinion piece  

The amusing commentary begins:

There’s a brutal moment in youth when you go from looking up to your elders to looking somewhat down on them. Or at least seeing them with a more jaundiced eye. Maybe it happens at a party. You glance around the room and realize the gentleman you once saw as distinguished has cheerfully dipped a half-eaten chicken wing into a bowl of hummus. You see what one might politely refer to as a “not young” woman waving her arms around with a little too much gusto on the dance floor. And it hits you: They don’t realize that they’re old.

So how do you know when it’s happening to you?

For the full commentary -- that you can read while smiling, however rueful your smile might be, see Wait, Who Did you Say is Middle-Aged?  

My thanks to all of our good friends who help in shaping this Blog!  

 

 

 

Enjoying Experienced Interviewers and Experienced Interviewees Talk Intriguing Career Details

When my overworked eyes are too tired to read even one more word or watch another moment of TV, I can still enjoy listening.  Over the weekend I caught two interviews of experienced professionals, made especially interesting because of the great exchanges between the "entertainers" and the well-prepared, dynamic questioners.

Jamie Lee Curtis -- of Scream fame (among other career highlights) -- interviewed by Alesha Roscoe on NPS's Weekend Edition Sunday.

and

Béla Fleck of all-things-banjo musical fame, interviewed by WTF host Marc Maron.  

What do these interviews have to do with "Elder Law"?  Thankfully, not much.  But both of the actress and the musician were talking from the perspective of their "age" about how and why they kept going in their crafts.  

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.  

Widener Univ. Commonwealth Law School's Clinical Students to Serve as Monitors in Pennsylvania Guardianship Program

Mary Catherine Scott, Director of the Central Pennsylvania Law Clinic at Widener University Commonwealth Campus, has recently partnered with Dauphin County Orphans' Court in Harrisburg, Pennsylvania to expand her clinical students' opportunities for service. Law students will now have roles as monitors in guardianship cases, seeking to maximize the interests of protected persons.  The Pro Bono Guardianship Monitoring Program was begun in central Pennsylvania by the Honorable Todd Hoover, and is now overseen by Dauphin County Court of Common Pleas Judge Jeffrey Engle, involving as many as 400 active cases.  The monitor program is another component of the Pennsylvania courts' enhanced protections for older persons and other persons found to be in need of certain assistance.  Pennsylvania also has a state-wide Guardianship Tracking System. 

This is another example of expanding services to older adults in Pennsylvania, an outgrowth of the Elder Justice Consortium, supported by representatives of all nine law schools in Pennsylvania.    

MA Plans May Not Cover All Medicare-Allowed Days for SNF Stay?

Kaiser Health News just released this story, Nursing Home Surprise: Advantage Plans May Shorten Stays to Less Time Than Medicare Covers.

Health care providers, nursing home representatives, and advocates for residents say Medicare Advantage plans are increasingly ending members’ coverage for nursing home and rehabilitation services before patients are healthy enough to go home.

Half of the nearly 65 million people with Medicare are enrolled in the private health plans called Medicare Advantage, an alternative to the traditional government program. The plans must cover — at a minimum — the same benefits as traditional Medicare, including up to 100 days of skilled nursing home care every year.

But the private plans have leeway when deciding how much nursing home care a patient needs.

One expert interviewed for the story  noted that "[a]s Medicare Advantage enrollment has spiked in recent years, ... disagreements between insurers and nursing home medical teams have increased. In addition, [the expert] said, insurers have hired companies, such as Tennessee-based naviHealth, that use data about other patients to help predict how much care an individual needs in a skilled nursing facility based on her health condition. Those calculations can conflict with what medical teams recommend...."

This is an important issue. Read this story.

Another Article on the Impact of Family Caregiving

On several occassions we've pointed out issues surrounding the need for caregiving and families stepping up to fill the role.  Add this article from the New York Times to the library of articles on the topic. The Quiet Cost of Family Caregiving focuses on the impact on the individuals providing care, especially if they are working. For example, "Caregivers who are employed often reduce their work hours or leave the workplace altogether, research has shown. Several recent studies, however, reveal the impact of these decisions in more detail, not only on working caregivers but on employers and the general economy." The article looks at the data on those who reduce hours or leave the workforce and the gender differences on those leaving the work force.  This is an important article-read it!

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.

Practice Tip for Older Student Loan Debtors

The National Center on  Law & Elder Rights has released a new practice tip, Cancellation of Debt & Other Changes to the Federal Student Loan System that Impact Older Borrowers.

Student loan debt is one of the biggest contributors to the rise in the amount of debt held by older adults. According to AARP, in 2020 8.4 million borrowers age 50 and older held 22% of the total federal student debt load, amounting to $336.1 billion. The average amount of student loan debt carried by families headed by adults 50 or older was $36,421 in 2019. This includes older borrowers who took out loans for their own education or to pay for a family member’s education. Default on student loans can result in aggressive collection actions, including the garnishment of wages and Social Security benefits, and an accumulation of fees and interest. Older adults consistently report difficulty managing their student loan debt while trying to stay on track to save for retirement or pay for other necessary expenses on reduced retirement incomes. This results in financial instability, especially for low-income older adults and those on f ixed-incomes.

The practice tip includes discussion of the moratorium on student loan collections, debt cancellation, public service loan foregiveness, changes under discussion for income-based repayment plans, and links to helpful resources. 

Canada Medically-Assisted Death

The New York Times recently ran this article, Is Choosing Death Too Easy in Canada? "Last year, Canada changed its assisted death law, permitting people with chronic, “grievous and irremediable” conditions and physical disabilities to commit suicide, even if they are not terminally ill."  As far as how Canada compares to other countries, "Canada is among 12 countries and several American states where assisted death is permitted in certain circumstances. Since last year, it has been one of at least three — including Belgium and the Netherlands — that allow an assisted death if the person is suffering from a chronic painful condition, even if that condition is not terminal."  Part of what is causing debate, according to the article, is a change that takes effect in March of 2023, when "the law will expand again, to apply to people with some mental disorders. A Parliamentary committee of lawmakers is studying what standards should govern those cases; its report is expected in the fall."  The article discusses views of opponents and proponents and includes some stories of Canadians. Read the article. It will be great for a basis for class discussion!

 

 

Register Now-Webinar on Guardianship Systems & Practices

The National Center on Law & Elder Rights has announced a webinar on Thursday September 22, 2022 at 3 eastern on Strengthening Rights & Ensuring Accountability in Guardianship Systems & Practice.   Here's a description

Improvements to state court adult guardianship systems can include the promotion of less restrictive options, strengthening rights, and ensuring accountability. Making significant changes in practice and systems requires the commitment of many parties, including courts and the legal, aging, and disability communities.

Join us for Part 1 of this training series to learn about models and promising practices to reform guardianship being implemented by three “highest state court” recipients of the ACL Elder Justice Innovations Guardianship Improvement grant program (Maryland, Minnesota, and Oregon).

This training will also preview Part Two of this series, which will focus on strategies for legal advocacy for proposed protected persons and protected persons.  

Presenters will share strategies they are implementing to:

1. Address diversion from, alternatives to, and revocation of guardianship;
2. Redress occurrence and risk of abuse, neglect, and exploitation in guardianship; and
3. Enhance the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship or conservatorship proceedings.

Speakers:

• Hilary Dalin, Office of Elder Justice and Adult Protective Services, Administration on Aging Administration for Community Living
• Nisa C. Subasinghe, Maryland Judiciary
• Jamie Majerus, Minnesota Judicial Branch
• Christian Hale, Oregon Judicial Department
• Jeffrey Petty, Oregon Judicial Department
• Jessica Brock, Indiana Legal Services

Closed captioning will be available on this webcast. A link with access to the captions will be shared through GoToWebinar’s chat box shortly before the webcast start time.

This training will be presented in a WEBCAST format to accommodate more participants. Due to the high volume of participants, computer audio will be the only option to listen to the presentation. No telephone call-in number will be provided. Please plan accordingly. Thank you. 

This webcast will be recorded and available on our website shortly after the presentation. The recording and training materials will also be emailed to all registrants within a few days after the training.

The webcast will take place on Thursday, September 22, 2022, at 12:00 p.m. P.T./3:00 p.m. ET and will run for 75 minutes.

To register, click here.

Economic Insecurity for Older Adults

Kaiser Health News ran a sobering article, ‘It’s Becoming Too Expensive to Live’: Anxious Older Adults Try to Cope With Limited Budgets.

Economic insecurity is upending the lives of millions of older adults as soaring housing costs and inflation diminish the value of fixed incomes.

Across the country, seniors who until recently successfully managed limited budgets are growing more anxious and distressed. Some lost work during the covid-19 pandemic. Others are encountering unaffordable rent increases and the prospect of losing their homes. Still others are suffering significant sticker shock at grocery stores.

The article goes on to focus on the circumstances of 3 individuals and the inpact of unexpected circumstances can have on the financial security of someone who worked hard all their lives.

Along the same lines, don't miss this article from the New York Times, Downsizing in Retirement: Expenses They Didn’t Expect. 

Focusing on unexpected expenses that arise from downsizing, such as making improvements in order to sell the house and closing costs related to the sale, the article also discusses the impact of the housing market and interest rates on the ability to sell the house, the costs incurred in finding a new home, and of course, who can forget, taxes associated with the sale of the home.

Companies Eliminating Mandatory Retirement to Keep Older Executives

According to an article in the Washington Post, Target is the latest corporation to ditch its mandatory age retirement policy in order to keep an older exec. Target axes mandatory retirement age as CEOs stay on the job longer 

explains Target joins other large corporations that have done away with the age limit for their execs as "a way to keep high-performing executives in their jobs... Older executives are sticking around longer, with the average age of an outgoing chief executive reaching 64 in 2021, up from 61 in 2020, according to research from SpencerStuart, which tracks data on CEO transitions."  The article looks at research and notes the trend to do away with these types of policys, as well as noting some the ages of some famous execs who worked for many years.

Nova Southeastern University (Florida) Posts Notices on Hiring Opportunities for Law Faculty Positions

Elder Law Prof Blog reader, Professor Kathy Cerminara at Shepard Broad College of Law, Nova Southeastern University, has sent us a new faculty jobs posting for positions at her law school.  Here is an excerpt of key information:  

Nova Southeastern University Shepard Broad College of Law (NSU Law) invites applications for two entry-level or mid-level full-time, tenure-track faculty positions for the 2023-2024 academic year. NSU is classified as a research university with “high research activity” by the Carnegie Foundation for the Advancement of Teaching. NSU is 1 of only 50 universities nationwide to also be awarded Carnegie’s Community Engagement Classification, and is also the largest private, not-for-profit institution in the United States that meets the U.S. Department of Education's criteria as a Hispanic-serving Institution.

 

NSU Law is looking for candidates with outstanding academic credentials who demonstrate potential for teaching excellence and for a high level of scholarly achievement and community engagement in the following subject-matter areas: Civil Procedure, Environmental Law, Constitutional Law, and Health Law. Qualified applicants in other, related subject-matter areas may be considered. We especially welcome candidates who will enrich the diversity of our faculty; these candidates include women, historically underrepresented minorities, persons with disabilities, LGBTQI+ individuals, veterans, and others whose backgrounds, experiences, and viewpoints enhance diversity.

Additional information is available for interested candidates from Olympia Duhart, Associate Dean for Faculty Development and Chair of the Faculty Appointments Committee at [email protected]

Pennsylvania EJC Meets with Pennsylvania Supreme Court Justices

Representatives from all 9 Pennsylvania law schools (deans!) and from the recently formed Elder Justice Consortium (pictured here) met this week with the Justices of the Pennsylvania Supreme Court. Our thanks to Drexel University Thomas R. Kline School of Law for hosting the meeting at its Kline Institute of Trial Advocacy in Center City, Philadelphia.  The afternoon of conversation focused on future work needed to provide stronger, critical support for older Pennsylvanians through advice, advocacy and education. As summarized by the Consortium's chair, Kate Norton of Duquesne Law, a key goal is to inspire students and to establish a commitment to elder justice.    

Our discussion was robust, with lots of questions about funding sources and alternative educational modules for teaching elder justice, including direct service clinics and projects, as well as experiential education, modular courses, and collaborative programming.  An example? Widener University Commonwealth Law School's clinical professor Mary Catherine Scott, who is the director of the Commonwealth campus' Central Pennsylvania Law Clinic highlighted her clinic students' latest outreach, working with the Dauphin County Court of Common Pleas in its Pro Bono Guardianship Monitor Program.  Student are assigned to individual matters and will interview older adults who are under formal orders, as well as talking with other parties or interested persons, thereby providing additional eyes and ears for the court in assuring accountability for Court-appointed guardians. 

We look forward to the future!

 

The Myriad Benefits Available to Older Persons

Kaiser Health News published a recent article that focused on the various programs and benefits for older persons that they may not know about.  While Inflation Takes a Toll on Seniors, Billions of Dollars in Benefits Go Unused offers these examples to make the point:

A few examples: Nearly 14 million adults age 60 or older qualify for aid from the federal Supplemental Nutrition Assistance Program (also known as food stamps) but haven’t signed up, according to recent estimates. Also, more than 3 million adults 65 or older are eligible but not enrolled in Medicare Savings Programs, which pay for Medicare premiums and cost sharing. And 30% to 45% of seniors may be missing out on help from the Medicare Part D Low-Income Subsidy program, which covers plan premiums and cost sharing and lowers the cost of prescription drugs.

And yes, the article acknowledges that for many programs, eligibility is based on a means test, while for others, it's just a priority.  The article offers tips to find out if an older person is eligible for any of these programs, starting with the local Area Agency on Aging.

Saving an Arm & a Leg on Drug Costs

Kaiser Health News released a podcast yesterday about the new law for CMS to negotiate drug prices under Medicare. ‘An Arm and a Leg’: The New Cap on Medicare Drug Costs explains "[t]he U.S. Senate was voting on the Inflation Reduction Act, which among other things is designed to ensure that people on Medicare pay less for expensive drugs....It’s a big deal. Lots of seniors pay $10,000 a year or more for drugs or do without lifesaving treatment; once the new law kicks in, it sets an out-of-pocket limit of $2,000 a year. "

The link to the 26 minute podcast is available here.  A transcript of the podcast 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.

A Few Interesting Articles

I'm a bit behind and in an effort to catch up, in this post I just wanted to point out to you a few interesting articles that you hmay want to read.

1.  A robot that will catch an older person who is falling:  This robot catches grandma before she falls.

2. Probiotics and arthritis: Rheumatoid arthritis could be treated by eating probiotic bacteria.

3. Advance detection of Alzheimer's before symptoms manifest:  New Device Can Detect Alzheimer’s 17 Years in Advance

(Thanks to my dear friend Professor Feeley for sending me the links to the last two).