Wednesday, July 21, 2021
Elizabeth Moran, a relatively new staff attorney for the ABA's Commission on Law and Aging, has an interesting article in the latest issue of Bifocal, Vol. 42, Issue 6 (July-August 2021). Moran outlines several key recommendations made by the National Guardianship Network during their May 2021 national Summit. She points to two of the 22 recommendations that bear on "effective communication" for persons with disabilities, especially when involved in court proceedings that may affect any determination of "legal capacity."
Recommendation 1.2 advocates for courts and state authorities "must ensure that all judicial proceedings" that can impact a determination of an adult's legal capacity must provide "meaningful due process" which includes respect for the individual's "preferred communication accommodations."
Recommendation 2.4 provides that federal and state authorities "should recognize that supported decision-making can be a reasonable accommodation under the Americans with Disabilities act of 1990, as amended, in supporting an individual in making their own decisions and retaining their right to do so."
Moran acknowledges there is weak understanding within some courts for how supported decision-making will work, even as she advocates strongly for its use. She writes:
While there is growing awareness of “supported decision-making” (SDM), particularly as an alternative to guardianship, SDM does not have a universally accepted legal definition. It is, however, becoming a more commonly understood concept of integrated supports which honors an individual’s integrity of choice with the underlying principle that, with enough appropriate supports and services, nearly every individual has the capacity to make decisions. When people use SDM as a communication accommodation, they use family members, friends, professionals, and others they trust and who know them well to help them understand the situations and choices they face, but with the ultimate choice left to the adult. This eliminates a substitute decision-maker and maximizes autonomy for the individual who may need communication supports for speaking, reading, writing, or understanding in order to meaningfully participate. The need for this kind of support necessarily includes and can provide for meaningful participation in court services, programs and activities.
For more on this important topic, read Moran's full piece, "Something to Talk About: Supported Decision Making and Access to Justice for All."
July 21, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, July 13, 2021
Kaiser Health News ran this story last month, Desperate for Home Care, Seniors Often Wait Months With Workers in Short Supply. Using Maine as an example, the article explains
The Maine home-based care program, which helps Shackett and more than 800 others in the state, has a waitlist 925 people long; those applicants sometimes lack help for months or years, according to officials in Maine, which has the country’s oldest population. This leaves many people at an increased risk of falls or not getting medical care and other dangers.
The problem is simple: Here and in much of the rest of the country there are too few workers. Yet, the solution is anything but easy.
The article reminds us that the President had included funding for home and community-based care in the infrastructure bill ("human infrastructure") and that this shortage was not unexpected. "For at least 20 years, national experts have warned about the dire consequences of a shortage of nursing assistants and home aides as tens of millions of baby boomers hit their senior years."
And here we are. The article emphasizes money--the lack of it, the low wages and more.
Monday, July 12, 2021
The California Bar has asked for input on Proposed Formal Opinion Interim No. 13-0002 (Client with Diminished Capacity). According to the announcement
Proposed Formal Opinion Interim No. 13‑0002 considers: What are the ethical obligations of a lawyer for a client with diminished capacity?
The opinion interprets rules 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, and 8.4.1 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code section 6068(e).
The opinion digest states: A lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to preserve a normal attorney client relationship with the client, that is, a relationship in which the client makes those decisions normally reserved to the client. The lawyer’s ethical obligations to such a client do not change, but the client’s diminished capacity may require the lawyer to change how the lawyer goes about fulfilling them. In particular, the duties of competence, communication, loyalty, and nondiscrimination may require additional measures to ensure that the client’s decision-making authority is preserved and respected. In representing such a client, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline. In some situations, the client’s lack of capacity may require that the lawyer decline to effectuate the client’s expressed wishes. When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.
At its meeting on October 23, 2020, and in accordance with their procedures, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 13-0002 for a 90-day public comment distribution. Subsequently, at its meeting on June 11, 2021, COPRAC revised the opinion in response to public comment and approved Proposed Formal Opinion Interim No. 13-0002 for an additional 60-day public comment distribution.
The text of the proposed opinion is available here.
Republished July 19 to correct error in title.
Seems like a good time to remind everyone of the fabulous resource from the ABA Commission on Law and Aging, Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2nd Edition. It's a must have for every attorney's library.
Sunday, July 11, 2021
Analyzing Britney Spears' Conservatorship: How Should Courts Respond to Allegations of a Toxic Guardianship?
This summer, J. Collin Fulton, a rising 2L student at Dickinson Law, with a prelaw background in journalism, has been doing a fantastic job while working on projects with me. He put together this very thoughtful overview of how Britney Spears' concerns, arising in the context of the California-based proceeding, may be relevant to the larger analysis of guardianships and conservatorships across the nation.
In the areas of guardianship and conservatorship law, perhaps no recent case has captured the attention of the American public as thoroughly as the conservatorship of Britney Spears. The Pop singer’s conservatorship was established in California in 2008 and has become one of the best-known examples of how, under U.S. law, a person can have the management of both their personal life and financial affairs placed under the control of a court-appointed guardian/conservator, typically as a result of mental or physical conditions or advanced age.
While a legion of Ms. Spears’ fans has routinely called into question both the necessity and nature of the singer’s conservatorship, it was the release of the New York Times' 2019 documentary “Framing Britney Spears” which brought the details of Ms. Spears conservatorship to the attention of the broader public. I personally became aware following the Times’ publication on June 22nd of an article detailing how Ms. Spears herself feels about the conservatorship. Based on court records acquired by the NYTimes, the article details both Ms. Spears opposition to the continuance of her conservatorship in its present form as well as Ms. Spears claims concerning some of the effects the conservatorship has had on her life. Based on court documents going back to 2014, the NYTimes article reports that:
- Spears “feels the conservatorship has become an oppressive and controlling tool against her.”
- Spears has informed the court that, as a result of the conservatorship, she felt compelled to perform against her will and compelled to stay at a mental health facility against her will.
- The conservatorship restricted a broad range of Ms. Spears decision making, ranging from who she was allowed to date to the manner in which she could decorate her home.
Ms. Spears’s June 23 public testimony further cast the conservatorship in a negative light. In the testimony, the singer claimed that, against her will, she was forced to take mood-altering drugs and forced onto contraception. Ms. Spears again called for her conservatorship to be ended and generally for the laws surrounding conservatorships to be changed. This call has been echoed by numerous other singers in support of Ms. Spears, including Justin Timberlake, Halsey, Brandy, and Mariah Carrey, as reported by the BBC.
Given what Ms. Spears claims has transpired as a result of her conservatorship and the public support she has received, I became deeply curious about how a conservatorship can actually be terminated. Given the complexity of guardianship/conservatorship laws, this is a question without a simple answer.
First, state laws vary significantly regarding who, how, and why a person can be placed under a guardianship/conservatorship. As Ms. Spears’s case takes place in California, I focus there.
There are two types of conservatorships under California law: Lanterman-Petris-Short (LPS) and Probate conservatorships, the latter of which is exemplified by Ms. Spears’s situation.
Such conservatorships are typically permanent affairs in California; however, they can be terminated in the following ways:
- The conservatorship ends due to the death of the conservatee.
- A judge may end the conservatorship upon petition to do so resulting from the conservatee regaining the ability to manage their own affairs (The argument Ms. Spears appears to be currently making).
- A conservatorship of the estate can be ended if the conservatee ceases to possess any assets to protect.
Learning this raised a new question for me: why would a court allow a conservatorship such as Ms. Spears’s to continue given her allegations? I believe the answer to this question lies in the purpose of guardianship/conservatorship laws.
This purpose is perhaps best exemplified in the California “Handbook for Conservators,” which the state mandates for conservator cases. The Handbook has a clear message for every new conservator: “You have been appointed conservator because someone – your parent, spouse, child, or other relative or friend – needs help, and you are willing to lend a hand.” This simple message, in my opinion, captures the thought behind guardianship and conservatorship laws. There are, sadly, situations in which a person is unable to manage their affairs. Guardianships and conservatorships allow for a legal redress to such situations, enabling courts to appoint a trusted individual to provide assistance in such circumstances.
The California Handbook also highlights another important fact central to the functionality of conservatorships: “The position of conservator is one of great trust and responsibility. The court and conservatee are trusting you to follow the law and to act in the conservatee’s best interests.” Given the incredible responsibilities assumed by a guardian/conservator, it is indeed imperative that guardians/conservators execute their duties with the utmost understanding and respect for the individual's own values and goals, while also complying with the legal obligation to make decisions in the best interest of the individual they have been appointed to protect.
With the purpose of guardianships/conservatorships now understood, I turn back to Ms. Spears and the question of why, given her allegations, her conservatorship still remains. The answer is, simply, that legal process such as this take time.
Just as a court needed to consider a multitude of factors in determining that Ms. Spears should become a conservatee, the court must now perform proper inquiries into the allegations that Ms. Spears has raised and then determine an appropriate response to take based on the validity of these allegations. This is true not only for Ms. Spears, but for any person in a guardianship/conservatorship situation. Guardianships/conservatorships are serious affairs, ones in which a person’s ability to control their own lives have been taken from them and handed to another individual, hopefully one who is trustworthy and will act in their best interest. Should doubts emerge about the actions of a guardian/conservator, or indeed the necessity of an established guardianship/conservatorship itself, investigating the situation thoroughly is paramount to the integrity of not only the guardianship/conservatorship in question but also the legal system of guardianships/conservatorships at large.
Mr. Fulton concludes: I thus believe that while a quick response from the court may satiate the immediate public outcry for change, a proper inquiry which establishes the truth and, in turn, enables the court to act based on the facts will not only improve Ms. Spears' situation but enhance public knowledge on the current state of guardianship/conservatorship laws in the United States.
July 11, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, July 9, 2021
During the first part of my summer, I wrote a review on Senator Amy Klobuchar's April 2021 book, Antitrust: Taking On Monopoly Power From the Gilded Age to the Digital Age. That turned out to be a very enjoyable, stimulating task and my article will be published late summer or early fall. This gave me the incentive to rethink how antitrust law, as a form of pro-consumer-protection "competition" rules might affect long-term care, including the concentration of ownership and operation of nursing homes and other types of "senior living." The student editor for the Law Review, Claudia Bernstein (Dickinson Law, Class of 2022), also has been captured by the topic, and she sent me an article today from the New York Times that furthered this inquiry. A key passage:
[In the U.S.] Fewer new businesses are starting. Existing businesses have slowed the pace at which they hire new workers . . . . Workers are less likely to switch jobs or move to a new city. Companies are investing in new buildings and equipment at a lower rate. And small businesses make up a shrinking share of the economy.
Together, these trends suggest that the economy suffers from a lack of fair competition, many economists believe. Large corporations are often able to increase profits not by providing better products than their rivals but instead by being so big that they exercise power over workers and consumers. The government also plays a role, through policies that protect existing companies at the expense of start-ups and new entrants into an industry.
The technical term for excess profits from a lack of competition is “monopoly rents.” Just think about how frustrated you may have been by the customer service from an airline, cable-television provider or health insurer. And then imagine how frustrating it may be to work there. Despite the problems at these companies, consumers and workers don’t always have good alternatives.
In my local area, there is a variation on this problem. As I have written about recently, county officials are proposing to close the county's "nursing home," which in my experience has been well run and served as a viable alternative for necessary services, including memory care. The likely purchaser will be a for-profit company (a modest-size, relatively new tri-state regional player). The county hopes to cease "having to subside the facility with general tax money." But, without those "subsidies," consumers' payment for care will have to increase, affecting residents unlikely to have the ability to pay more. As one article on the history of Pennsylvania's county nursing home conversions concludes:
County-owned homes, once ubiquitous, are becoming less common in Pennsylvania. Facilities that have been privatized generally have lower ratings on common metrics; a York Dispatch study in 2018 found that 15 formerly county-owned facilities sold since 2005 had an average rating of 1.9 stars out of five on the common scale used by the Centers for Medicare and Medicaid Services, while the state’s 21 county-owned homes averaged 3.1 stars [out of a possible 5 stars].
Monday, July 5, 2021
Florida adopted eldercaring coordination legislation that went into effect last week on July 1. Here's a brief description: "Elder-focused Dispute Resolution Process; Authorizes courts to appoint eldercaring coordinators & refer parties to eldercaring coordination; specifies duration of appointments; requires courts to conduct review hearings; provides for qualifications, disqualifications, removal, & suspension of coordinators; authorizes courts to award certain fees & costs of eldercaring coordination; provides immunity from liability for certain parties; requires Florida Supreme Court to establish minimum standards & procedures."
The summary of the bill expands:
The bill creates an alternative dispute resolution process for persons 60 years of age and older who are involved in certain legal proceedings. Specifically, the bill allows a court to appoint an eldercaring coordinator to assist in disputes that can impact an elder’s safety and autonomy. The court must specifically define the scope of an eldercaring coordinator’s authority in its order of appointment.
An eldercaring coordinator may be appointed for up to 2 years, although a court has discretion to extend or suspend the appointment as needed. In order to be appointed as an eldercaring coordinator, an applicant must:
- Meet a specified professional licensing requirement, such as membership in The Florida Bar or being a licensed nurse;
- Complete 3 years of post-licensing or post-certification practice;
- Receive training in family and elder mediation;
- Receive 44 hours in eldercare coordinator training, which must offer training on topics including, among other things:
- Elder, guardianship, and incapacity law;
- Family dynamics;
- Multicultural competency; and
- Elder abuse, neglect, and exploitation.
- Successfully pass a background check; and
- Have not been a respondent in a final order granting an injunction for protection against domestic, dating, sexual, or repeat violence or stalking or exploitation of an elder or a disabled person.
The bill provides that an eldercaring coordinator may be removed or disqualified if the coordinator no longer meets the minimum qualifications or upon court order.
The bill requires an equal amount of fees and costs for eldercaring coordination to be paid by each party, subject to an exception. If a court finds that a party is indigent, the bill prohibits the court from ordering the party to eldercaring coordination unless funds are available to pay the indigent party’s allocated portion. Likewise, cases involving exploitation of an elder or domestic violence are ineligible for a referral without the consent of the parties involved. The court must offer each party the opportunity to consult with either an attorney or a domestic violence advocate prior to accepting consent of the referral and the court is required to determine whether each party has given their consent freely and voluntarily.
When a court is determining whether to refer parties that may have an above-mentioned history that would otherwise preclude the referral, the court must consider whether a party has:
- Committed an act of exploitation or domestic violence against another party or any member of another party’s family;
- Engaged in a behavioral pattern where power and control are used against another party and that could jeopardize another party’s ability to negotiate fairly; or
- Behaved in a way that leads another party to reasonably believe he or she is in imminent danger of becoming a victim of domestic violence.
If the court refers a case to eldercaring coordination that involves a party who has any history of domestic violence or exploitation of an elder, the court must order necessary precautions to ensure safety of specified persons and property.
The bill provides that all communications that meet specified requirements and are made during eldercaring coordination must be kept confidential. The bill provides that parties to the eldercaring coordination, including the coordinator, may not testify unless one of the enumerated exceptions applies. The bill also provides remedies for breaches of confidentiality.
The bill provides legislative findings and requires the Florida Supreme Court to establish minimum standards and procedures for training, qualifications, discipline, and education of eldercaring coordinators....
The full text of the new law can be accessed here.
Wednesday, June 30, 2021
Under New Mexico’s new law, a doctor can issue a prescription for life-ending medication only after determining the patient seeking it has the mental capacity to make such a decision.
In addition, patients have to be able to self-administer the medicine and only those deemed likely to die within six months will be able to obtain it. There will also be a 48-hour waiting period to get the prescription filled, with narrow exceptions.
An earlier article highlighted some of the features of the new law.
The legislation will not force physicians, pharmacists or other health care professionals to provide life-ending drugs.
As the law is written, a terminally ill patient’s doctor can prescribe the drugs only after obtaining a second medical opinion and ensuring the patient is mentally and emotionally fit to make a choice about ending their life.
* * *
[The head] of Compassionate Choices Action Network, said New Mexico’s bill is different from others because it allows nurse practitioners and physician assistants, as well as physicians, to prescribe the life-ending drugs.
While most states’ aid-in-dying laws include a 15-day waiting period between the time the patient receives approval for the drugs and when they can obtain the them, New Mexico’s waiting period is 48 hours.
Monday, June 28, 2021
We have read stories about the efforts in various states to encourage folks to get vaccinated. Bloomberg Law ran a story last week that looks at the impact on SNF residents when staffers are not vaccinated. ‘Flat-Out Resistant’ Staffers Imperil Nursing Home Vaccine Goal gives this data:
An industry effort to vaccinate 75% of nursing home staff against Covid-19 by July 1 appears to be faltering as continued employee hesitancy, declining infection and death rates, and general pandemic fatigue are making it tough to sustain the urgency necessary to meet the lofty goal.
Only 1,133 nursing homes—less than 10% of the roughly 15,000 Medicaid- and Medicare-certified facilities—had reached or surpassed the 75% staff vaccination threshold by the end of May, new federal data shows. And only 50% of staff have been inoculated at nursing homes that have provided the recently required vaccination data.
We all know how the pandemic ravaged many of the SNFs, and the article offers this: "Nursing homes and other long-term care facilities have been the epicenter of the Covid-19 outbreak, accounting for nearly 184,000 deaths and more than 1.4 million infections as of May 10, according to the Kaiser Family Foundation. Infected staffers are believed to be the cause of much of the carnage."
Facilities are taking various measures to increase the vaccination rates amongst staff. Some are doing one on one counseling, others are opting to require vaccination as a condition of employment. What are the barriers to vaccination? "Along with concerns about the vaccines’ rapid development and potential side effects, [staff] reluctance to get the shots reflects a combination of misinformation, cultural distrust of the medical profession, and a growing anti-vaccine sentiment that’s taken hold across the country.... [with such] hesitancy [continuing] even though more than 1,900 nursing home workers have died from Covid-19, while nearly 585,000 have been infected, federal data shows." Some facilities are offering incentives. One helpful resource, "[t]he Agency for Healthcare Research and Quality has produced a how-to, best practices guide to building vaccine confidence among CNAs."
Friday, June 25, 2021
Yesterday, the Tampa Bay Times ran this story, DeSantis signs controversial bill to boost staffing at nursing homes. According to the article, "HB 485, which Gov. Ron DeSantis signed ..., allows a type of worker known as a “personal care attendant” to count towards the staffing requirements for nurse assistants, though they have less training and a more restricted role in the type of assistance they can provide." Notice that this category of employee counts toward the staffing numbers. The article notes that previously this was "intended as a tourniquet to help mitigate staffing shortages at nursing homes during the pandemic, [and now the] new law will make permanent a program that allows facilities to hire less experienced employees to supplement the work of nursing assistants, who are able to provide more complex care for seniors." The article discusses the long standing staffing requirements in Florida and how that was impacted by the pandemic.
In March 2020, as more staffers became infected with the virus or quit due to health concerns, the state implemented an emergency program that allowed nursing homes to temporarily hire personal care attendants to help amid the deficit.
Personal care attendants assist with daily living activities. After 16 hours of training, they’re able to begin caring for residents and, through hands on experience, are meant to continue learning on the job. They can do so for up to four months — at this point, they must take the exam to become a certified nursing assistant if they wish to continue working at a facility.
The article notes objections by those concerned at the impact of the new law. "By allowing personal attendant care to be counted as if it was time a licensed nurse assistant spent caring for a resident, critics fear the law will be used to hire fewer nurse assistants, who are paid higher salaries and cost nursing homes more, in favor of less-qualified staff." Proponents offered that this new position can serve as a training opportunity for those who want to become CNAs. The article offers that no Florida "agency appears to be tracking the program’s success in creating future nurse assistants. Florida’s Agency for Health Care Administration, the Department of Elder Affairs and the Department of Health all said they do not collect data related to this information."
We will have to wait to see if this new position becomes a recruitment tool for more CNAs.
Friday, June 18, 2021
Last week Kaiser Health News ran a story about elders in SNFs using their digital skills tor each out to their legislators, Zooming Into the Statehouse: Nursing Home Residents Use New Digital Skills to Push for Changes.
Nursing home residents who have been using digital technology to reach out to family and friends — after the covid pandemic led officials to end visitation last year — could also use it to connect with elected officials once the legislature moved to remote hearings....
The combination of a virtual legislature and nursing home residents equipped with internet access has created an opportunity most nursing home residents rarely have — to participate in their government up close and in real time.
* * *
So far this year, nursing home residents have testified in support of legislation to improve staffing levels, create a designated “essential support person” with special visitation privileges, and allow “technology of their choice” in their rooms to communicate with whomever they wish, among other proposals. The latter passed unanimously in both chambers, said [Connecticut AARP’s advocacy director] “and we expect the governor to sign it into law.”
One legislator has introduced a bill to permanently allow virtual advocacy there.
Tuesday, June 15, 2021
Bloomberg recently published an opinion regarding the Uniform Definition of Brain Death, A Scary Plan to Revise the Definition of Death. "People may be less willing to agree to be organ donors if they believe the quest for organs changes how patients are treated."
According to the article, the Uniform Law Commission has a study committee, looking at "the need for and feasibility of updating the Uniform Determination of Death Act (1980), which has been enacted in 44 states. Issues to be considered include lack of uniformity in the medical standards used to determine death by neurologic criteria, the relevance of hormonal functions, and whether notice should be provided before a determination of death."
The Bloomberg article mentions an opinion piece published last year in the Annals of Internal Medicine which the Bloomberg article suggests is concerning. The Bloomberg article examines the elements of the proposal and reviews the advantages of it, but also notes opposition to it. "Despite all the arguments in favor of the revisions, more than 100 experts in medicine, law, philosophy and bioethics have signed a statement of opposition...."
The article discusses the objections and how the proposal might reduce the amount of organ donations. The article is very interesting and if you could End of Life planning in your classes, this article gives you some thoughtful background.
Tuesday, June 8, 2021
Register now for this June 18 (3 eastern) webinar, NORC Webinar: Resuming In-Person Visits During COVID-19: Tips for Identifying Trauma, Potential Abuse, and Supporting Residents
In recognition of World Elder Abuse Awareness Day (WEAAD) join us to learn how to identify and respond to signs of trauma and potential abuse or neglect and support residents as Ombudsman programs resume in-person visits during the COVID-19 pandemic.
Dr. Laura Mosqueda, a national and international expert on elder abuse and neglect, will provide tips for Ombudsman programs conducting in-person visits, such as signs of trauma in response to isolation and loss during the pandemic and potential signs of abuse and neglect. She will also share recommendations for supporting residents and available resources. As an accomplished physician and researcher, Dr. Mosqueda has testified in front of Congress and has been invited to the White House several times to discuss elder justice initiatives. She has taken the lead on landmark studies to identify forensic markers of abuse and neglect and serves as a volunteer representative for the California Long-Term Care Ombudsman program.
Attendees will also hear from two Ombudsman program representatives as they share their experience resuming in-person visits and highlight what they observed upon reentry, how they supported residents, tips for visits, lessons learned, and successful practices.
Click here to register.
June 8, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Sunday, June 6, 2021
Call for Papers: Under Pressure: Legal And Systemic Responses To The Psychological Trauma Associated With Covid-19
Shepard Broad College of Law @ Nova SE has announced a call for papers for their Spring 2022 Symposium, Under Pressure: Legal And Systemic Responses To The Psychological Trauma Associated With Covid-19.
Nova Southeastern University (“NSU”) Shepard Broad College of Law and the Nova Law Review
seek submissions for the Law Review’s annual Symposium on March 11, 2022. Since January
2020, COVID-19 has ravaged the United States’ population physically, economically, and
psychologically. Caused by the novel coronavirus SARS-CoV-2 (“COVID-19”), the pandemic
simultaneously decimated the population, shuttered businesses, and traumatized those
experiencing its effects. Consequently, increased prevalence of mental, neurological, and
substance use disorders already has and will continue to present the legal system with challenges of previously unknown proportions. As mental health professionals substantiate and address the negative impacts of uncertainty, fear, isolation, and economic hardship, legal issues are multiplying.
The Nova Law Review invites academics, scholars, practitioners, and stakeholders to submit
proposals for panel presentations on topics involving the legal impact of the psychological trauma produced by COVID-19 in the United States. (see website for topic ideas).
SUBMISSIONS & IMPORTANT DATES:
Please submit materials to firstname.lastname@example.org
- Submission Deadline for Abstracts: July 16, 2021
- Submission Deadline for Articles: January 14, 2022
- Symposium Date: March 11, 2022
LAW REVIEW PUBLISHED ARTICLES: The Nova Law Review will review, edit, and publish
submissions in the 2022 Symposium issue. Articles, as well as case studies and abstracts of
research in progress, will be considered for the Symposium Program for presentation purposes.
Only complete articles, however, will be published in the Law Review. Abstracts for these papers will be due no later than the July 16, 2021 deadline and will be accepted on a rolling basis until that time
There are also opportunities to present without submitting an article for consideration for publication. More information is available here.
Friday, June 4, 2021
Early in my career, I had a ringside seat for was supposed to be a "big" trial for F. Lee Bailey, who passed away at the age of 87 earlier this week. Reading about his career has brought back memories.
In 1983, Mr. Bailey represented one of New Mexico's most prominent criminal defense lawyers of the time, William Marchiando, on libel allegations against the state's largest newspaper, The Albuquerque Journal. My firm represented the Journal. During the trial I was a mere "helper" (although I had a surprising opportunity to handle aspects of a post-trial motion). The trial focused on an article where Mr. Marchiando's photo appeared prominently, just below a provocative headline, "Organized Crime Showing Interest in New Mexico."
One consequence of suing a newspaper for libel is that every minute of the trial was covered by media, and that meant weeks of news coverage, a fact not lost on Mr. Bailey, who was premiering his new television show that same year, a program called "Lie Detector."
The 8-week trial took place in the southern New Mexico city of Las Cruces (on a change of venue from Albuquerque). After 4 days of deliberations, the locally-selected jury voted, 10 to 2, that there was no defamation. The jurors included retired military, members of local farming and ranching families, and several hard-working school teachers.
The newspaper took the position that truth was their defense, a decision that probably startled the plaintiff. I recall hearings about admissibility of tape recordings of the plaintiff meeting with prisoners at New York City's infamous "Tombs," allegedly discussing organized crime-related "business," rather than matters pertaining to any representation of the defendants in their criminal cases. One of the Journal's trial witnesses, via video-recording, was "Jimmy the Weasel" Fratianno, who was a confessed hitman for "the mob." (I was flown one night, via a private jet, to conduct a pretrial interview of "Jimmy" at an undisclosed location, one of the spookier events of my early career).
Some of Mr. Bailey's obituaries mention his "photographic memory" and I saw that in action. He handled direct and cross examination of witnesses without any notes, and, perhaps most impressively, would accurately quote lengthy sections of depositions when seeking to "impeach" a witness, again without any paper in his hand. His oratory was delivered with a deep voice that had a touch of gravel in it, and he was always impeccably dressed.
In contrast, the Journal's primary trial attorney (and my boss), Eric Lanphere, was much less showy. Indeed, the publisher of the paper ruefully shook his head as his attorney crossed the courtroom one afternoon during trial, trailed by a floating, long piece of toilet paper stuck to one heel. "That's my attorney -- sort of looks like Columbo, doesn't he?," he mused. But Mr. Lanphere also had his own talents, and the key talent was being down-to-earth, rational, and equally oriented to details, albeit not necessarily delivered from memory.
My real lessons came during preparation for the post-trial hearings. We were responding to the plaintiff's attempts to reverse the verdict, claiming there was juror misconduct (ultimately an unsuccessful effort). My task began with interviewing as many of the 12 jurors (and the alternates) as would speak to me, to get their take on the trial and deliberations. Along the way, I asked them what they thought of Mr. Bailey's flair in the courtroom. Usually the juror would smile and give me an account of some especially impressive detail of Mr. Bailey's performance.
Then I would ask, "how did Mr. Bailey affect your vote in the case?" And each juror, regardless of their vote, quickly responded that as much as they enjoyed Mr. Bailey's "tricks," (their frequent label), they knew their job was to evaluate the evidence presented by witnesses and exhibits. The trial judge had delivered those instructions with a very firm voice. The jurors made it clear to me they weren't going to allow themselves to be swayed by the performance of any attorney. The "facts" mattered, and mattered especially, it seemed, when presented by the more humble attorney in the room.
Thursday, June 3, 2021
In Carlisle, a classic college town in Central Pennsylvania, the hottest topic at the moment is, surprisingly enough, the "county" nursing home.
"Save Claremont" signs outnumbered the political signs in the recent primary election.
A robust advocacy movement seeks to prevent the sale of Claremont Nursing & Rehabilitation Center, a publicly-administered facility with 282-beds to private enterprise. In a detailed story carried by local newspaper, The Patriot News, both sides of the issue are making their pitches:
The members of Citizens Saving Claremont are arguing the county not only can keep Claremont afloat, but with some effort, investment and leadership, they can make it thrive.
"It has been sustained for 192 years," said Tim Potts, one of the founding members of Citizens Saving Claremont. "This year, 2021, is the first year that we've had to use county money to support Claremont, and that's only on a temporary basis because of the impact of COVID." . . .
But that doesn't change the fact that Claremont is hemorrhaging money, Cumberland County Commissioner Gary Eichelberger said. Projections show it will only get worse and will have to be propped up by taxpayer dollars.
And the completion of a sales agreement could be just days away.
For some advocates, keeping the facility in public hands is about maintaining a commitment to citizens of all income levels, and they point out that Claremont's Medicare "star" rating has usually been higher than private enterprise nursing homes in the region. As recently as 2002, as many as 40 of Pennsylvania's 67 counties had "public homes"; but, currently just 21 remain in county hands.
For more see Citizens Group Pushes to Save Claremont, published online behind a paywall on June 1, 2021 and on the front page of the traditional newspaper format on June 4, 2021.
With lockdowns being lifted in commercial arenas, I'm once again hearing from residents in Continuing Care Retirement Communities (CCRCs), also sometimes called Life Plan Communities, as well as other similar senior living settings. The most frequently raised concern is "how can management of my community make major changes in services and amenities without asking us if we agree to a new contract?" Sometimes I am able to recommend local legal counsel for the callers.
As a matter of theory, there's a traditional "law-based" answer to this question, with state-specific tweaks. And then there is what happens all too often in real life.
Generally speaking, the law provides that unilateral attempts by one party to make significant changes in the parties' duties under a contract are not legally effective. Here's one state Supreme Court's typical statement of the rule of law (written in the context of considering an employer's unilateral attempt to change an employment contract):
The cases dealing with employment contracts are merely part of the general rule that recognizes no difference between an express and an implied contract.... As a result, to effectively modify a contract, whether implied-in-fact or express, there must be: (1) an offer to modify the contract, (2) assent to or acceptance of that offer, and (3) consideration."
Demasse v. ITT Corp., 984 P.2d 1138, 1144 (Az. 1999). As my law students know, "consideration" is a legal term of art, and generally means a "bargained for exchange." In the context of modification of existing agreements, this often involves new financial terms or mutual concessions in the parties' respective duties.
But, the real-life situation is that the party with the greater bargaining power simply ignores the bargaining process altogether. In employment contexts, that's the employer. They treat their notice of major changes as "the new agreement" simply because no one objected. That's not how the rule of law is supposed to work, but it does, all too often. Indeed, I will confess that the very reason I started teaching Contract law was my growing familiarity with disputes in senior living scenarios that made me wonder if there was something about contract law I'd missed back in my own days as a law student. There wasn't (although the full explanation would require a law review article) -- but the world keeps spinning along with the more powerful party in many commercial contexts able to avoid the contract because they are "in charge."
Residents don't, however, have to put up with this. Resident groups in individual CCRCs and those living in states where there are regional organizations have learned to flex their considerable muscle, both in negotiations with management and with state regulators or legislators. I'm also hearing from more attorneys who are representing residents in negotiations, or when necessary, in arbitrations or on lawsuits alleging breaches of contract and fiduciary duties. Plus, I'm hearing from more states officials who are asking good questions.
It not a secret that I like CCRCs and I like them a lot. I've visited CCRCs throughout the U.S. and they tend to be vital examples of senior living, offering community engagement, social networks, friendly-settings, caring service providers, and the reassurance of assistance if needed. Many forms of senior living options are struggling with the impact of the pandemic, with enhanced pressures on facilities to balance their budgets. This is probably triggering a new upswing in attempts to make unilateral changes.
I have worried, long before the pandemic, that an episodic history of paternalistic or peremptory changes by management in CCRCs can undermine public confidence in this format as a viable alternative for seniors. CCRCs have their highest value for consumers when residents are making the transition before becoming too frail to appreciated the amenities and services. New residents may be unlikely to "invest" in CCRCs if they lack confidence that promised services will be available when needed.
June 3, 2021 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, May 31, 2021
Starting off the month of June with another roundup of articles about nursing homes.
First, from the New York Times at the end of April, Cuomo Aides Spent Months Hiding Nursing Home Death Toll.
Then, also from late April, this article from Politico, Will the Nursing Home of the Future be an Actual Home?
Then, a recent report from the GAO, COVID-19 in Nursing Homes: Most Homes Had Multiple Outbreaks and Weeks of Sustained Transmission from May 2020 through January 2021 (the link takes you to the page with links for highlights, the full report, fast facts, and a podcast).
On another topic related to SNFs, as we approach hurricane season, this important report about facilities in Florida with emergency power backups. See, generators by Florida county for ALFs and SNFs.
Thursday, May 20, 2021
Colorado: "Former Police Officers" Facing Criminal Charges For Conduct in Arrest of Woman with Dementia
On May 19, 2021, the District Attorney's Office covering Loveland Colorado announced criminal charges against two officers who had already been removed from the force after details became public about their June 2020 arrest of a 73 year-old woman with dementia. The primary arresting officer was charged with second degree assault causing bodily injury, attempt to influence a public servant (both being felony charges) and official misconduct, a misdemeanor, while a second officer who arrived midstream, was charged with misdemeanors, of "failing to intervene" in a case of excessive force, failing to report the use of force, and official misconduct, according to records from the DA's office.
More details here:
May 20, 2021 in Cognitive Impairment, Crimes, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 18, 2021
Still emerging is the COVID impact on the SNF model of nursing home care. Take a look at these recent articles to note the trends.
- Medicare requiring nursing homes to report weekly vaccination statistics.
- Nursing Homes Must Educate, Offer Covid-19 Shots, HHS Says (1) and the corresponding interim rule, here.
- How Vaccine Hesitancy Is Driving Breakthrough Infections in Nursing Homes.
- Big Investors Push Nursing Homes to Upgrade Care and Working Conditions.
- Covid Forces Families to Rethink Nursing Home Care.
- Covid awakened Americans to a nursing home crisis. Now comes the hard part.
These are all worth the time to read. Stay tuned-there's no clear cut path yet.
Monday, May 17, 2021
Families in Texas have been hard at work the last two years, responding to the deaths of loved ones in Dallas-area senior-living communities who may have been killed by a serial murder suspect. Organizing under the name "Secure Our Seniors Safety," they have pressed for an array of legislation to compel care-giving communities to provide greater accountability, including reporting suspicious activity such as employee concerns, where there is potential risk to vulnerable adults. One of the bills, "Marilyn's Law," or HB 723 was named after one of the suspect's victims. Marilyn's daughter had initially been told her mother, who was living in a care center, had died of "natural causes." The death certificate was later amended, but the daughter only learned from news reports that her mother may have been one of the suspect's victims, suffocated with a pillow.
From a recent Dallas News article:
The first bill filed in response to a string of slayings at Dallas-area senior living communities passed the Texas Senate on Thursday and now awaits Gov. Greg Abbott’s signature.
For the families who say their loved ones were killed by a serial murder suspect, it’s a moment more than two years in the making. . . .
The bill passed Thursday is named for Pangburn’s mother, Marilyn Bixler. Marilyn’s Law, or HB 723, was introduced by two Collin County lawmakers — Sen. Angela Paxton and Rep. Jared Patterson — after The Dallas Morning News first reported Pangburn’s story.
The new law will require officials to notify next of kin if a cause of death is amended.
The bill was signed into law by the Texas Governor on May 15, 2021.
Chemirmir, a suspect in at least 17 murder, theft or attempted murder cases, awaits trial because of delays related to Covid-19, according to news reports, including national news profiles.
For more on related legislation pending in Texas, see "Death Certificate Bill Filed in Response to Chemirmir Case Passes in Austin."
May 17, 2021 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)