Monday, November 11, 2019

Elder Justice Toolkit Released

The National Center on Law & Elder Rights   has announced the release of the Elder Justice Toolkit.  According to the website

The Elder Justice Toolkit is a resource created by the National Center on Law & Elder Rights. It contains practical information on civil legal remedies, practice tips, and sample pleadings for attorneys seeking protection and redress for their clients who have experienced elder abuse. Multiple states’ perspectives are considered and used as examples, but the Toolkit is designed for national use.

Some of the resources contained in the Elder Justice Toolkit have come from legal assistance organizations and have been re-formatted or re-purposed by NCLER...

This resource will continue to grow and have materials added to it over time. To receive NCLER communications and updates on resources, sign up here.

To find additional resources on elder justice topics, please read our Elder Justice Compendium.

A collection of our elder abuse webcast trainings can be found here.

Each topic includes a summary, an issue brief and step-by-step guide and a video.  Here's an example of an issue brief on mandatory reporting for elder abuse cases.

Check it out and bookmark the webpage!

November 11, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Other, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, November 5, 2019

Upcoming Webinars on Elder Abuse

There are two upcoming webinars you won't want to miss. First, register for the How to Talk About Elder Abuse webinar  on November 13 at 1 eastern. According to the announcement

Over the past few years, the FrameWorks Institute worked with the National Center on Elder Abuse to create a communication strategy that demonstrates how we can restructure our communities to put elder abuse on the public agenda, generate a sense of collective efficacy on the issue, and boost support for systemic solutions to prevent and address it. During this webinar, participants will learn about the NCEA’s Reframing Elder Abuse project; review a new evidence-based public communication strategy on elder abuse; and begin learning how to apply it in their communication practices.

To register, click here.

The next webinar, on December 3, at 2 eastern, covers New Research on Elder Abuse Among American Indian and Alaska Native Populations,

The webinar which is hosted by the National Center on Elder Abuse at the Keck School of Medicine of USC, will cover the following:

Many tribal communities are experiencing a silent epidemic of abuse of older adults. Limited research on elder abuse has suggested higher rates of abuse among tribal elders, yet little is known about promising strategies that can be implemented to prevent or manage cases of abuse. This webinar will provide an overview of elder abuse in Indian Country, including recent research identifying new national-level prevalence rates and predictors of abuse among American Indian and Alaska Native elders. Rates of various types of elder abuse for Native Americans-- almost double that of overall findings from original study findings -- will be shared. The unique, complex context that intersects to shape abuse correlates for tribal elders such as history of trauma, social support, and emotional problems will be discussed. Findings from a recent national needs assessment focused on screening and management of elder abuse in tribal health settings that included tribal health care providers, elder advocates, Title VI staff, and tribal Adult Protection Services will also be shared. Presenters will identify promising practices and strategies identified in the needs assessment, as well as a series of recommendations that can be implemented in local tribal communities to help combat elder abuse.

To register, click here.

November 5, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Tuesday, October 22, 2019

Pennsylvania's Unique Role for Older Adult Advocacy in State Government

On Monday, I participated in a panel discussion of aging services in Pennsylvania, at the invitation of Professor Patricia Aguilera-Hermida, who is on the faculty of Human Services and Family Studies at Penn State Harrisburg.  Even though I knew most of the panelists -- all experienced professionals from Pennsylvania's Department of Aging -- the occasion gave me new insight and respect for the role of advocacy on behalf of older adults.  The students were attentive and asked great questions, and I suspect some of them saved their best questions for the one-on-one time with the speakers.

Penn State Harrisburg  Panel on Aging Services 10.22.19

Robert Torres, the Secretary of Aging in Pennsylvania reminded us that our state has a uniquely strong, dedicated funding system to advocate for older adults through the Pennsylvania Lottery.  About 80% of the department's operations and outreach budget is funded by this source.  As anyone who has worked in state or federal government would know, the "fight" for adequate funding for operations can be intense, and in many states older adults would not have a strong position in the queue for necessary dollars.

The breadth of programming outlined by the panelists is impressive. For example,  Christine Miccio, Director of the Bureau of Aging Services described in detail the OPTIONS program that provides direct support for more than 55,000 older adults who are still in their homes. Pennsylvania also has more than 500 publicly supported Senior Centers -- a way to reach additional people with meals, health care information, activities and social programs.  Margaret Barajas, a dynamo who is the Statewide Long-Term Care Ombudsman, explained how a system of volunteer and paid advocates investigate and coordinate responses to concerns about senior living-based needs, including concerns about quality of services in nursing homes and assisted living facilities.  Denise Getgen, as director of the Older Adult Protective Services Office, described the ever growing need for investigation of complaints about elder abuse, neglect and exploitation.  In recent years, the number of complaints received and investigated by the state has grown to over 40,000 allegations per year, with the majority of concerns focusing on self-neglect for persons in isolated circumstances.  I've worked with several of these units directly over the years, especially when I was head of my Law School's Elder Protection Clinic.  Pennsylvania's Area Agencies on Aging continue to fund and coordinate certain free legal services for seniors in need in each county throughout the state.

One student asked about whether services from the Department are limited to "citizens" of the United States -- and it was impressive to hear the long list of services that are NOT restricted by citizenship.  Another student tossed a "softball" question -- "what is your favorite program?" -- and Christine Miccio hit it out of the park by describing the success of a new pilot program in rural Pennsylvania that matches up older adults who need housing or assistance -- with those who can provide housing or assistance.   She joked that she is now the eHarmony of housing matches, especially as the original pilot program is extending to several additional counties.  

My thanks to Professor Aguilera-Hermida for hosting this noon-time chat with so many students who are considering a wide range of aging services as part of their career goals.  One enterprising student explained to me that her interest in the field of gerontology at medical school was sparked when she found affordable housing as a student in a well-known, nearby nursing home that had "extra" space.  

October 22, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 17, 2019

Webinar on Self-Neglect and Hoarding

Here's an upcoming free webinar from the National Center on Law & Elder Rights on November 12 at 2 est:

Legal Basics: Self-Neglect and Hoarding Disorders

When: Tuesday, November 12, 2019 at 11:00 a.m. PT/2:00 p.m. ET.

Lawyers working with older adults are likely to encounter challenges related to self-neglect and hoarding. Intervening in self-neglect cases can be very complicated. Clients who have a hoarding disorder may be living in conditions that make it impossible for them to live in safety, resulting in self-neglecting behaviors. This Legal Basics session will discuss the most common root causes of self-neglect and hoarding disorders, provide insight into the complexity of the issues, and offer suggestions of how to offer help. The webcast will also explore legal issues and the lawyer’s role when working with older adult clients.

The webcast will cover:

  • Understanding self-neglect and helping without harming.
  • The line between self-neglect being a human services issue and a legal issue.
  • Assessing possible hoarding disorder cases. 
  • Suggestions when working with a person with hoarding disorder.
  • When hoarding becomes a legal issue.

This webcast is being presented as part of NCLER’s forthcoming Elder Justice Toolkit. Stay tuned for more!

Click here to register.

October 17, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 15, 2019

Loosening the Regs of Florida ALFs?

The Tampa Bay Times ran an article a few days ago that raises some important issues. Florida’s assisted living facilities write rules on reporting deaths, injuries . explains the current reporting requirements when a resident is injured and the proposed change to the requirement.

When a resident in one of Florida’s assisted living facilities falls, dies or is seriously injured, that facility is required to tell the state within one business day that something has gone wrong. But a bill before lawmakers would give operators weeks to report such critical incidents — potentially leaving residents in harm’s way, elder advocates warn.

Industry groups for assisted living facilities, which crafted much of the bill’s language and handed it to lawmakers, say the one-day reports are not needed, and eliminating them will reduce onerous paperwork and unnecessary administrative fines.

Hang on for a second and think about this.  There must be a reason for the current requirement... and advocates say it's because they "are necessary to inform state regulators quickly of potential incidents, and that the change is part of a decades-long deregulation of the industry that could put residents at greater risk."

The section on adverse incidents involves one of the key methods for alerting regulators when something goes wrong. Currently, an initial report must be filed if a resident dies, sustains serious injuries, goes missing or is transferred to a hospital or other facility for more intensive care — and facility administrators think they may be responsible.

Assisted living facilities are required by statute to submit up to two reports: one within one business day after an incident, and another full report within 15 days if the facility determines it is responsible. When a report is filed, the Agency for Health Care Administration can then use it to initiate an investigation if it raises concerns about resident safety.

The proposal requires just 1 report that is filed by 15 days, when the facility makes the decision that " the incident happened in the scope of its care, though it would direct the facility to begin investigating the incident within 24 hours" the article reports. The article indicates that the bill was brought by the Florida Senior Living Association, and is supported by AHCA. Advocates for residents take the opposing few-that is more regulation rather than less.  The bill's sponsor in the Florida Senate is quoted as saying "the legislation [is] a “modernization” bill that would primarily update language in the statute, and allow residents to use devices to move around more easily or prevent falls.... [and that] the language to reduce the number of adverse incident reports was meant to bring assisted living facilities in line with a recent change made to reduce those reports for nursing homes, and “to make sure the language would be as similar as possible." Although the Senator has spoken primary with the industry folks, she plans to talk to resident groups too, the article reports.

Read the bill and follow it. If you live in Florida, let your elected representative know your position on this. If you live in another state, pay attention anyway. The revisions could be proposed in other states as well.

October 15, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Sunday, October 13, 2019

Updated Resources in the Fight vs. Elder Abuse

NAPSA has announced two resources for the fight vs. elder abuse. The first is an updated version of the National Guidelines for Financial Institutions: Working Together to Protect Older Persons from Financial Abuse. "The Guidelines and forms [are] ... designed to promote standardization and clarity among financial institutions and Adult Protective Services."  Note that the guidelines include a variety of useful forms, which are accessible here in addition to their inclusion in the guidelines. 

NAPSA also announced  the creation of  "the National Clearinghouse on Financial Exploitation, your "go to" for for all things related to financial exploitation. The Clearinghouse will provide answers to questions, links to resources, introduction to partners and problem solving to help strengthen our resources and partnerships in our fight against financial exploitation."

Go to NAPSA-Now for more information and resources.

October 13, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, September 25, 2019

Special Needs Trust Failing?

Kiplinger recently ran an article, How a Special Needs Trust for Your Child Can Fall Apart,  which explains

Parents of disabled children must juggle a lot of responsibilities: work, bills and of course caregiving. But one ball they can’t afford to drop is special needs planning. One wrong move in this complicated ballet balancing benefits and services with asset rules could be disastrous. While every family’s situation is unique, the laws regulating special needs trusts are complex and can require some strategizing by families and trust companies — and if necessary, utilization of available government and nonprofit support programs. 

The article reviews the laws, the requirements for a valid third party SNT and highlights one person's experiences, an attorney's advice for the person and advice for parents of children with special needs.

The key takeaway from this story is that it is essential that parents of a disabled child learn about federal, state, local community, charitable and other nonprofit support programs that may help. They must also discuss eligibility rules with relatives who may want to make gifts for the child, leave a share of their estate, include the child in a beneficiary designation for a retirement plan or life insurance or provide other types of in-kind support and maintenance.

Finally, setting up a special needs trust requires planning, legal and financial expertise, and the proper and compassionate administration of a professional trustee.

September 25, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 24, 2019

Elder Justice Policy Highlights

USC has published  Elder Justice Policy Highlights for March-August 2019. The introduction explains that

"[t]he elder justice legislation found in this document was elicited and finalized from the National Center on Elder Abuse (NCEA) Listserv and independent websites in August 2019. The compilation is intended to reflect highlights across the nation and does not include all legislation related to elder justice. However, updates will be sent quarterly and states are encouraged to send updates on significant legislative action to Ageless Alliance. This document reflects activity in 17 states and highlights at the federal level.

The report divides the information by federal and state, includes a summary for each development as well as a link to view the information online. It also includes a section of pending activity that deserves a look.

This is a great resource and provides students with a quick snapshot of activities across the country.

September 24, 2019 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 17, 2019

Faith Based Colorado Hospital Fires Dr. Who Planned to Help With MAD

Although it's been a bit of time since Colorado 's medical aid-in-dying (MAD) law went into effect, but recent events suggest the topic has not been settled. According to Kaiser Health News, Firing Doctor, Christian Hospital Sets Off National Challenge To Aid-In-Dying Laws

A Christian-run health system in Colorado has fired a veteran doctor who went to court to fight for the right of her patient to use the state’s medical aid-in-dying law, citing religious doctrine that describes “assisted suicide” as “intrinsically evil... [the doctor] had planned to help her patient...   end his life at his home [the patient] is eligible to use the state’s law, overwhelmingly approved by Colorado voters in 2016."

This illustrates the clash between faith-based hospitals and state laws. "As hospitals across the country have consolidated, five of the top 10 hospital systems by net patient revenue are associated with the Roman Catholic Church ...  [t]hat includes hospitals that did not previously have any religious affiliation. Meanwhile, there are 10 U.S. jurisdictions where aid-in-dying has been approved and public support for the option is increasing."

Stay tuned-this is going to take a while to be resolved through the courts.

September 17, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, September 6, 2019

Mediation & Arbitration in Florida Probate Rules?

Proposed amendments to the Florida Probate Rules are out for comment. These amendments allow for  the use of mediation and arbitration. "The amendments provide that the court may refer all or any part of a contested probate or guardianship matter to mediation or arbitration, thereby empowering courts and parties with the option of using non-adversarial dispute resolution processes to resolve these disputes."

Here's some info about the proposed rules:

Rule 5.181 Rules Common to Mediation and Arbitration(a)Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested probate or guardianship matter to mediation or arbitration. The parties to any contested probate or guardianship matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral. (1)Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral. (2)Notice. Within 15 days after the designation of the mediator or arbitrator, the court or its designee, who may be the mediator or the arbitrator, shall notify the parties in writing of the date, time, and place of the conference or hearing, unless the order of referral specifies the date, time, and place. (b)Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration, if: (1)the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law; (2)the issue presents a question of law only; (3)the order violates rule 1.710(b) or rule 1.800; or(4)other good cause is shown.

(c)Motion to Defer Mediation or Arbitration. Within 15 days of the order of referral, any party may file a motion with the court to defer the proceeding. The movant shall set the motion to defer for hearing prior to the scheduled date for mediation or arbitration. Notice of the hearing shall be provided to all interested parties, including any mediator or arbitrator who has been appointed. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation or arbitration shall be tolled until disposition of the motion.

(d)Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying themselves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.

Proposed Rule 5.182, "Mediation Rules", provides the parties can agree to mediation or the court can order it on the court's own motion.  However, section 5.182(b) precludes from mediation matters concerning bond, contempt and other matters as determined in an administrative order. Likewise, Proposed Rule 5.185 covers matters excluded from arbitration. Proposed Rule 5.183 covers procedures for mediation and proposed rule 5.184, completing mediation.

The proposed rules are available here.

September 6, 2019 in Consumer Information, Current Affairs, Other, State Statutes/Regulations | Permalink | Comments (0)

Mediation & Arbitration in Florida Probate Rules?

Proposed amendments to the Florida Probate Rules are out for comment. These amendments allow for  the use of mediation and arbitration. "The amendments provide that the court may refer all or any part of a contested probate or guardianship matter to mediation or arbitration, thereby empowering courts and parties with the option of using non-adversarial dispute resolution processes to resolve these disputes."

Here's some info about the proposed rules:

Rule 5.181 Rules Common to Mediation and Arbitration(a)Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested probate or guardianship matter to mediation or arbitration. The parties to any contested probate or guardianship matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral. (1)Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral. (2)Notice. Within 15 days after the designation of the mediator or arbitrator, the court or its designee, who may be the mediator or the arbitrator, shall notify the parties in writing of the date, time, and place of the conference or hearing, unless the order of referral specifies the date, time, and place. (b)Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration, if: (1)the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law; (2)the issue presents a question of law only; (3)the order violates rule 1.710(b) or rule 1.800; or(4)other good cause is shown.

(c)Motion to Defer Mediation or Arbitration. Within 15 days of the order of referral, any party may file a motion with the court to defer the proceeding. The movant shall set the motion to defer for hearing prior to the scheduled date for mediation or arbitration. Notice of the hearing shall be provided to all interested parties, including any mediator or arbitrator who has been appointed. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation or arbitration shall be tolled until disposition of the motion.

(d)Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying themselves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.

Proposed Rule 5.182, "Mediation Rules", provides the parties can agree to mediation or the court can order it on the court's own motion.  However, section 5.182(b) precludes from mediation matters concerning bond, contempt and other matters as determined in an administrative order. Likewise, Proposed Rule 5.185 covers matters excluded from arbitration. Proposed Rule 5.183 covers procedures for mediation and proposed rule 5.184, completing mediation.

The proposed rules are available here.

September 6, 2019 in Consumer Information, Current Affairs, Other, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 4, 2019

Assisted Living-Is It the Right Option for Assistance in Living?

My colleague and dear friend Professor Bauer, sent me the link to a recent op-ed in the New York Times,  How Not to Grow Old in America.The assisted living industry is booming, by tapping into the fantasy that we can all be self-sufficient until we die.

Assisted living seems like the solution to everyone’s worries about old age. It’s built on the dream that we can grow old while being self-reliant and live that way until we die. That all you need is a tiny bit of help. That you would never want to be warehoused in a nursing home with round-the-clock caregivers. This is a powerful concept in a country built on independence and self-reliance.

The problem is that for most of us, it’s a lie. And we are all complicit in keeping this dream alive.

The author notes that the ALF industry has a financial incentive to market their product and it's appealing to the kids of those who reside in ALFs.  The author writes, "[t]he irony of assisted living is, it’s great if you don’t need too much assistance. If you don’t, the social life, the spalike facilities, the myriad activities and the extensive menus might make assisted living the right choice. But if you have trouble walking or using the bathroom, or have dementia and sometimes wander off, assisting living facilities aren’t the answer, no matter how desperately we wish they were." Further, the author offers data that most of these residents need more care than that provided and argues in favor of regulation, using several actual cases as illustrations to support the call for regulation.

We need to let go of the ideal of being self-sufficient until death. Just as we don’t demand that our toddlers be self-reliant, Americans need to allow the reality of ourselves as dependent in our old age to percolate into our psyches and our nation’s social policies. Unless we face up to the reality of the needs of our aging population, the longevity we as a society have gained is going to be lived out miserably.

September 4, 2019 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, Retirement, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, September 3, 2019

Financial Fraud in US Upcoming Conference

The FINRA Foundation has announced an upcoming conference, Research Conference on The State of Financial Fraud in America. The conference will be held on October 2, 2019 in Washington, D.C.   Here's some info about the conference:

Featured Keynote: Cybercrimes, Digital Fraud and You

It's no longer just about changing your password, cyber threats are growing in frequency and complexity. As technology continues to develop, there are more opportunities for impactful cyber-attacks. In this featured talk, Roy Zur, Cybint Solutions, will discuss trends in cyber-fraud tactics, how Dark Web markets and forums fuel cybercrime, and how cybercriminals utilize digital currencies.


Sessions include:

  • What Separates Victims from Non-Victims?
  • From Fraud Victim to Fraud Fighter
  • What We Can Learn from Neuroscience
  • Life Course Transitions, Thresholds, and Turning Points to Elder Financial Exploitation
  • Promising Interventions
  • Federal Approaches
  • Serving the Victims of Financial Crimes
  •         Where Do We Go from Here?

To register, click here.

September 3, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 30, 2019

Accessibility of Elder Housing-What Happens When the Elevator is Out of Order?

A local news station recently ran an article about the impact of a broken elevator on the residents who live on top floors in  8 On Your Side gets results for seniors in building with broken elevator.   Knowing my colleague and dear friend, Professor Bauer, had written an article on 55+ housing that included a discussion of accessibility issues, I asked him if he'd write a guest post for us on this topic. Here it is:

Would You Please Just Fix It?

By
Mark D. Bauer
Professor Law
Stetson University College of Law

 

A recent news story in Tampa Bay reported that the single elevator in a mid-rise apartment building stopped working in late May and would not be repaired until October.  That alone is surprising and seems wrong.  But what makes this story particularly shocking is it occurred in an age 62 and older HUD subsidized building.  Even more shocking:  there are no federal laws regulating elevator repairs in federally managed or sponsored elder housing.

The story was made for television.  A local news station interviewed numerous tenants with disabilities incapable of walking down staircases.  One elder tenant interviewed said she had not been able to leave her home in two months and she found it very depressing.  I have little doubt that most anyone would feel the same way.

The good news is that by airing this story and providing publicity to the tenants, the company managing the apartment complex arranged for free hotel rooms for any resident desiring one.  The elevator still will not be repaired until October because a part needs to be manufactured abroad.  But at least the elder tenants now have an alternative to remaining prisoners in their own homes.

The bad news is that while this particular situation may be extreme, elder residents of multi-story apartment buildings are often trapped in their homes with little warning and no real alternative.  The fact that most elevator repairs take less than six months is little comfort.

Department of Housing and Urban Development regulations require only the most basic life safety features in elder housing, such as smoke detectors.  Most state and local laws covering elevators require that they be inspected and remain in good repair.  It is always hard to search for the absence of a law or a case, but I have found nothing in the United States that regulates how long a repair may take.  Unfortunately, I suspect the answer is “as long as needed.”

I did find one relevant case in Indiana where residents of elder housing suffered without elevators for over a month and then sued.  On procedural grounds, the federal court held that the residents might have a viable argument under the Americans with Disabilities Act but could not sue under traditional landlord-tenant law (here the residents claimed that the broken elevator “constructively evicted” them).  And as you might imagine, once the judge opened the door just a crack for possible litigation, the owners of the elder housing complex immediately fixed the elevator and settled with the residents.

It is ironic that the government sponsors or subsidizes elder housing without ensuring the physical safety of the residents, particularly when private entities often profit through participation in these programs.  In researching this issue, a simple Google search produced literally hundreds of news stories about elders all over the country being trapped in multi-story buildings during lengthy elevator repairs.  Like the situation here in Tampa Bay, the elevators were often repaired quickly after a local news story.

Even elevators in good repair cannot function without electricity.  After many elders were killed or injured in Florida after a major hurricane in 2005 made their apartments inaccessible, a state law was passed requiring all 55 and older housing to add emergency generators for elevators.  The real estate lobby was particularly effective here and got the state legislature to repeal the law a short time later.

Subsidized or government-owned congregate housing for elders is aging; few units have been added since the 1980s, and certainly not enough to replace housing demolished or converted to other uses.  Five elevator companies remain after industry consolidation, and only one is located in the United States.  It is no surprise then that elevators installed in the last century are difficult to repair.  Cities and counties with large elder populations often spend extraordinary amounts of money responding to emergency calls requiring firefighters to carry elders down staircases.

It is easy to ignore a problem like stranded elders in high-rises because any single building has these problems infrequently, and with no publicity.  But nationally we are putting lives in danger and wasting precious public funds by ignoring the problem.  Currently it is very unlikely that HUD will take any corrective action.  But in the long-run, it would be much cheaper to plan for broken elevators by requiring elder communities to provide for temporary accessible housing, or coordinate services necessary for daily living, or require emergency generators in mid- or high-rise buildings with only one elevator.

Professor Bauer's law review article on 55+ housing is available here.  Thanks Professor Bauer!

August 30, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, State Statutes/Regulations, Television | Permalink | Comments (1)

Tuesday, August 27, 2019

Do POLST Forms Require Authorizing Legislation to be Effective?

PA POLST FormsIn Pennsylvania, we've had bills pending for several years that would expressly authorize the use of POLST forms for agreements between physicians and their patients about life-sustaining treatments.  Pennsylvania has a fairly long history of dragging its feet about enacting laws regarding end-of-life decisions, and was one of the last states to formally recognize so-called living wills or other advanced health care directives.   The traditional legal reason for statutory authorization is that statutes validate pre-incapacity decisions that will only become effective once incapacity occurs.  The authorization, in essence, allows the document to survive the incapacity of the principal.  

But is this same reasoning applicable to POLST forms? Is legislation required to make this form of "planning" effective?  As currently used, the forms require a conversation between the health care provider and the patient (or the patient's representative -- and that can get tricky in Pennsylvania), usually in the context of hospitalization or an immediate or looming health crisis, that results in the patient's "informed" decisions becoming the "doctor's order" for treatment.  In 2006, a Pennsylvania law directed establishment of an advisory committee "to assist in determining the advisability of using" POLST forms that "detail the scope of medical treatment for patients' life-sustaining wishes."  The committee included representatives of the state's medical society, the joint state government commission that advises on Pennsylvania law, the Pennsylvania Bar association and relevant state agencies.  Following a grass roots movement to implement the POLST concept, eventually a Pennsylvania Department of Health form was developed and approved on a trial basis with individual hospitals.  The bright pink POLST forms currently in use in Pennsylvania certainly look "official."  

In December 2018, after another attempt to create clear state authority for POLST failed to reach a vote in the Pennsylvania House, one of the Senate sponsors wrote to explain why passage is important.  Senator Gene Yaw takes the position that clarity of scope of authority, prohibitions on improper insurance company use, portability or the orders for transfers between facilities and clarity of application during emergency medical services are all necessary elements of statutory authority, needed to assure that "individuals ... have the right to dictate end-of-life decisions in a manner that is sensitive to the situation at hand." Two bills are currently pending, PA Senate Bill 142 (Printer's No. 117) and PA House Bill 997 (Printer's No. 1118).

In the meantime, it seems that patients are creating POLST orders with physicians in Pennsylvania, without authorizing legislation.  

August 27, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)

Monday, August 26, 2019

Abuse of SNF Resident On Video

This is just a sad story.  Margaret Collins resident of a SNF, was abused by those tasked with caring for her, according to an article in Huffington Post. Family Sues After Video Shows Nursing Home Workers Taunting Elderly Dementia Patient summarizes the events. Read the story and watch the video. It can be a good jumping off point for a discussion of the importance of resident rights, and litigation and regulations.   Other stories about this are available here,  here , here, and here to include a few. Additional info is available on the blog of the attorneys for the plaintiffs.

Thanks to Professor Dick Kaplan for alerting me to the story.

August 26, 2019 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 21, 2019

Recent Developments on Guardianship Laws

There are a couple of recent developments I wanted to point out to you. One is a bill recently introduced in the House of Representatives, H.R. 4174, the Guardianship Accountability Act of 2019.  Section Two of the bill contains findings and purposes:

 (a) FINDINGS.—Congress finds the following:

(1) An estimated 1,300,000 adults and approximately $50,000,000,000 in assets are under the care of guardians in the United States.

(2) Most guardians are selfless, dedicated individuals who play an important role in safeguarding individuals in need of support. However, unscrupulous guardians acting with little oversight have used guardianship proceedings to obtain control of individuals in need of support.

(3) Once a guardianship is imposed, there are often few safeguards in place to protect against individuals who choose to abuse the system and few States are able to report accurate or detailed guardianship data.

(4) A full guardianship order may remove more rights than necessary and may not be the best means of providing support and protection to an individual. If individuals subject to guardianship regain capacity, all or some rights should be quickly and efficiently restored.

(5) States should encourage courts to use alter natives to guardianship through State statutes, including the adoption of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, to ensure better protections and control for individuals being considered for guardianship and those pursuing a restoration of their rights.

(6) A national resource center on guardianship is needed to collect and publish information for the benefit of courts, policy makers, individuals subject to guardianship, guardians, community organizations, and other stakeholders.

(b) PURPOSES.—The purposes of this Act are to help States improve guardianship oversight and data collection by—

 (1) designating a National Online Resource Center on Guardianship;

(2) authorize grants for the purpose of developing State Guardianship Databases; and

(3) establishing procedures for sharing background check information related to appointed guardians with other jurisdictions.

The bill calls for the Elder Justice Coordinating Council to establish the National Online Resource Center on Guardianship as well as some steps at the state level regarding data collection and analysis.   Read the bill here.

The second item is from the Governor of New Mexico who in a recent speech at the state's conference on aging indicated improving the guardianship system is a priority. Governor vows to stop guardianship abuse  explains that in her speech the Governor

“Here in New Mexico, veterans, senior citizens and disabled adults have been taken advantage of by unscrupulous court-appointed, corporate guardians,” she told the conference....

Corporate guardians, she said, “have been stealing people’s property, separating them from their families and hiding their benefits, as well as “locking folks away where nobody can find them and nobody can visit.”

Her administration, she said, is working to prevent this and adopt the best possible standards and safeguards. McCoy, who will become the director of the state Developmental Disabilities Planning Council, will lead that effort.

There is more action that just these two items, so keep reading this blog as we report on more updates.

August 21, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 16, 2019

Medical Aid in Dying in NJ on Hold

The AP has reported that a judge has temporarily enjoined the NJ Medical Aid in Dying law that went into effect a few weeks ago.  The hearing is scheduled for October according to the story, New Jersey’s medically assisted suicide law put on hold. 

"The order means that New Jersey’s recently enacted measure cannot be enforced by the state attorney general and comes in response to a lawsuit brought by a doctor practicing in the state... [who argues in the lawsuit] that immediate and irreparable damage will probably result in view of the fact that if its enforcement is not immediately enjoined, New Jersey citizens can actually begin dying.”  The plaintiff, a doctor, contends "that the law is an affront to religious doctors [and] the law violates constitutional rights as well as common law barring suicide."

Stay tuned.

August 16, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 15, 2019

Are Long Term Care Insurance Losses at the Heart of Financial Woes for General Electric?

The Wall Street Journal and other news sources are reporting on a financial research report released publicly today by an accounting expert -- the one who blew the whistle on the Bernie Madoff scheme -- and his investigation team, that alleges massive inaccuracies and fraudulent filings by General Electric Company.  GE officials are fighting back, alleging market manipulation is the motive behind the report.  From a Wall Street Journal article on Thursday, it seems GE's liability for losses on its long-term care insurance products is a key focus:

The Markopolos group includes John McPherson, co-founder of MMS Advisors, forensic accountants specializing in the insurance industry. The group worked for seven months to analyze GE’s accounting.

 

Mr. Markopolos said he is going public with the report now because the group just finished its work. It had been working on another insurance case when GE’s insurance problems caught its eye, he said.

 

The group claims GE’s long-term-care insurance holdings are a bigger liability than the company is letting on. The report estimates GE will need to boost its insurance reserves by $18.5 billion in cash and take a $10.5 billion charge because of an accounting change required by 2021.

 

Those figures are on top of a $15 billion reserve boost already taken by GE over seven years to cover its exposure to long-term-care policies, which cover expenses like nursing homes and assisted living. The policies have proved to be a problem for many insurers. The companies drastically underestimated the number of future claims and how long people would draw on the coverage before dying.

 

“We believe that our current reserves are well-supported for our portfolio characteristics, and we undertake rigorous reserve adequacy testing every year,” GE said in its press release. 

On the one hand, as an occasional observer of LTC industry woes, it seems hard for me to believe that at this point any company would try to hide or downplay the high-profile losses that the LTC industry has encountered for more than 10 years.  Nonetheless, the whistleblower team's  allegations are pretty bold, especially set against the market instability overall this week.  

August 15, 2019 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 14, 2019

Mark Your Calendars: Webinar on Legal Basics: Representing a Client in a Defense of Guardianship Case

The National Center on Law & Elder Rights is offering a free webinar on September 10, 2019 at 2 p.m. edt on Legal Basics: Representing a Client in a Defense of Guardianship Case.  The speakers are David Godfrey from the ABA Commission on Law & Aging and Catherine Seal, Esq. Here's info about the webinar

Lawyers serve an essential role in protecting the due process rights of every defendant or respondent in an adult guardianship case. This can include presenting evidence that no guardian is needed or that a limited guardianship is sufficient to provide the protections that are needed. This webcast will focus on the role of an attorney representing the interests and wishes of a client who is the subject of a guardianship action.

Presenters will share:

  • How to protect the client’s due process rights; 
  • Options for when a guardian/conservator is not needed;
  • How to respond when the filing asks for more protection than is needed; and 
  • Actions to take when a guardianship order is no longer needed or a less restrictive order is needed.

This training will explore common due process concerns and substantive defenses in adult guardianship cases. Presenters will discuss how to develop and present evidence advocating for the least restrictive alternatives in an adult guardianship case. 

To register, click here

August 14, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)