Wednesday, October 5, 2022
The U.S. Justice Department issued a press release yesterday, announcing the expansion of its Transnational Elder Fraud Strike Force. The Strike Force was organized in 2019, involving the Justice Department's Consumer Protection Bureau, U.S. Attorneys Offices, the FBI, Homeland Security, and -- I was interested to see -- the United States Postal Inspection Service
I've actually worked with the Postal Inspector on an elder fraud case. A woman in her 90s was mailing an unusually fat envelope and asked a friend to give her a ride to a local branch of the post office. The friend, knowing the woman was quite frail when walking unassisted, offered to get the postage, or to accompany her, but the older woman, who the friend thought seemed unsure of herself, declined. The friend thought about this, was alerted by what struck her as unusual behavior, and called the woman's daughter and explained what had just happened.
The daughter had dismissed a home caregiver recently after learning the caregiver was asking her mother for -- and receiving -- two or more "pay checks" per week, as well as asking for additional cash that seemed to disappear in mysterious ways. The daughter went to the post office with a copy of a certified Power of Attorney, granted to her by her mother several years before she was diagnosed with multiple conditions, including cognitive issues, following a stroke. In fact the reason the caregiver had been hired was precisely because the mother was vulnerable and sometimes confused.
The Post Office at first seemed to be reluctant to take action, but the daughter was able to describe the envelope and also to provide the name of the former employee who had already been fully paid for his work, and had signed a receipt to that effect. The Post Office's worker agreed to search, but when the daughter departed, it seemed unlikely any action would be taken. That is, it seemed unlikely until the next day, when a representative of the Postal Inspector set up an appointment. Having identified and been given the daughter/agent's permission to open the envelope, the federal authorities found several hundred dollars in the envelope that was, indeed, addressed to the former worker. The officers interviewed the mother and then went to see the suspect, who claimed it was merely an additional paycheck that was "owed." He claimed the mother was fully supportive of giving him cash, but he was unable to explain the receipt he'd signed, the burner phones he had used to call the woman, nor the many "payments" he'd received in the last 60 days, payments that the daughter had since documented as more than tripling his agreed wage rate during that period.
I'm the daughter; my 90+ mother was the person defrauded. (She has since passed away, so I feel more able to tell this story.) I learned the Postal Service already understood such a fact pattern very well. Even at that time, several years ago, the official investigating the facts told us that similar transactions happened all too often. It is good to see, with this latest press release, that the U.S. Justice Department is coordinating authorities on enhanced fraud prevention and recovery efforts in support of elder justice.
My thanks to Associate Dean for Academic Affairs Amy Gaudion at Penn State Dickinson Law, who shared the Justice Department notice with me, and whose own research focuses on national security and privacy issues.
October 5, 2022 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 19, 2022
The National Center on Law & Elder Rights has announced a webinar on Thursday September 22, 2022 at 3 eastern on Strengthening Rights & Ensuring Accountability in Guardianship Systems & Practice. Here's a description
Improvements to state court adult guardianship systems can include the promotion of less restrictive options, strengthening rights, and ensuring accountability. Making significant changes in practice and systems requires the commitment of many parties, including courts and the legal, aging, and disability communities.
Join us for Part 1 of this training series to learn about models and promising practices to reform guardianship being implemented by three “highest state court” recipients of the ACL Elder Justice Innovations Guardianship Improvement grant program (Maryland, Minnesota, and Oregon).
This training will also preview Part Two of this series, which will focus on strategies for legal advocacy for proposed protected persons and protected persons.
Presenters will share strategies they are implementing to:
- Address diversion from, alternatives to, and revocation of guardianship;
- Redress occurrence and risk of abuse, neglect, and exploitation in guardianship; and
- Enhance the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship or conservatorship proceedings.
- Hilary Dalin, Office of Elder Justice and Adult Protective Services, Administration on Aging Administration for Community Living
- Nisa C. Subasinghe, Maryland Judiciary
- Jamie Majerus, Minnesota Judicial Branch
- Christian Hale, Oregon Judicial Department
- Jeffrey Petty, Oregon Judicial Department
- Jessica Brock, Indiana Legal Services
Closed captioning will be available on this webcast. A link with access to the captions will be shared through GoToWebinar’s chat box shortly before the webcast start time.
This training will be presented in a WEBCAST format to accommodate more participants. Due to the high volume of participants, computer audio will be the only option to listen to the presentation. No telephone call-in number will be provided. Please plan accordingly. Thank you.
This webcast will be recorded and available on our website shortly after the presentation. The recording and training materials will also be emailed to all registrants within a few days after the training.
The webcast will take place on Thursday, September 22, 2022, at 12:00 p.m. P.T./3:00 p.m. ET and will run for 75 minutes.
To register, click here.
September 19, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Thursday, August 18, 2022
Recently Pennsylvania Bar Association and Philadelphia Bar Association legal ethics committees issued a Joint Formal Opinion addressing ethical considerations in the handling of several related forms of billing for services: flat fee, earned upon receipt, and non-refundable fees. Elder Law attorneys use various forms of such billing.
On the one hand, clients often want to know up front the full cost for services and thus like flat fee billing. On the other hand there can be tensions about whether or when such fees are "earned." The opinion stresses the need for clarity in the client-attorney relationship, so as to assure mutual understanding about when a fee is deemed earned, and to make sure clients are fully advised about the fee structure. With older clients -- and their family members -- it can be especially important to avoid assuming everyone understands mere "labels" for different fee arrangements.
In Joint Ethics Opinion No. 2022-300, the Committees conclude that under Pennsylvania Rules of Professional Conduct and with the guidance of prior opinions:
• Any fee not “earned upon receipt” is deemed an “advance” fee, which may only be deposited into the operating account if the client provides informed consent, confirmed in writing, in accordance with Rule 1.15(i); and,
• When a fee is deemed to be “earned upon receipt,” attorneys may deposit the fee into an operating account rather than a Rule 1.15 IOLTA account or other Trust account, provided that the attorney specifically states in the fee agreement that the fee is intended to be nonrefundable and earned upon receipt.
Hat tip to Rob Clofine, elder law attorney extraordinaire, for sharing this with Pennsylvania lawyers.
Wednesday, August 3, 2022
On August 3, 2022, the Pennsylvania Commonwealth Court issued its latest ruling in the long-running case of Friends Boarding Home of Western Quarterly v. Commonwealth, with an en banc opinion rejecting Friends Home's exceptions to the appellate court's earlier three-judge panel ruling. The full court focuses closely on the use of residents' fees to operate the Continuing Care Retirement Community (CCRC) and the argument that because "some" residents receive subsidized care the facility is donating the necessary "substantial" portion of its services. For example:
Between 2014 and 2017, Friends incurred annual operating losses between $386,620-$542,652. In 2018, Friends had an operating deficit of $265,569 and for 2019, $790,069. Friends maintains that these deficits lend additional support that Friends’ rates contain substantial subsidies that benefit all residents, such that it satisfied the requirement that it donates or renders gratuitously a substantial portion of its services.
We recognize that Friends incurs operating deficits that it covers with funds generated from investments and contributions. However, Friends’ argument that its operating deficits prove that it donates a substantial portion of its services by subsidizing all rates is once again refuted by the fact that there are for-profit facilities in the vicinity of Friends Home providing similar services at comparable rates. Even though Friends may incur operating deficits, it has not demonstrated that it donates “a substantial portion of its services” “to those who cannot afford the ‘usual fee.’” HUP, 487 A.2d at 1315 n.9. Thus, we discern no error in the conclusion reached [by the Panel] in Friends Boarding Home in this regard.
My Pennsylvania colleague Douglas Roeder and I recently co-authored an article about the ongoing challenges for nonprofit organizations, especially those who offer fee-based services. The latest ruling from the Pennsylvania Commonwealth Court would seem to deepen the need for certain nonprofits who seek "purely charitable" tax exemptions to carefully consider their charitable mission. I'm also thinking that nonprofit CCRCs would also be well advised to have candid discussions of their charitable missions with both potential residents and current residents. Ultimately, it will be the more solvent residents who make up the difference in support of the charitable mission.
Monday, July 25, 2022
Do Federally Exempt Nursing Homes, Assisted Living, and Continuing Care Communities Also Qualify as "Institutions of Purely Public Charity?"
The latest in a series of senior-care related cases is making its way through the Pennsylvania appellate courts, asking whether a federally tax exempt senior living facility -- one that offers a range of options including independent living, "supported" independent living, personal care, and skilled care, although it isn't licensed as a CCRC -- can also qualify for state property and sales tax exemptions.
Pennsylvania, in ways similar to many states, allows a federal charitable tax exemption under Rev. Code Section 501(c)(3) to serve as the basis for state exemptions from income taxes, but a separate state statute sets tougher requirements to qualify as a "purely public charity" in order to avoid responsibilities to pay real property, sales and use taxes. Nursing homes, intermediate care settings (such as personal care or assisted living), and continuing care retirement communities (CCRCs) often rely on federal revenue rulings that recognize historical grounds to exempt "homes for the aged" from taxation. See e.g., Rev. Rul. 72-124 (also available at 1972 WL 30720). But on a fairly regular basis, Pennsylvania taxing authorities have challenged such enterprises as not being "sufficiently" charitable. Compare, for example In re St. Margaret Seneca Place, 640 A.2d 380 (Pa. 1994) (upholding state tax exemptions for a nursing home) with Appeal of Dunwoody Village, 52 A.3d 408 (Pa. Commw. 2012) (denying state tax exemption for a CCRC). In September 2021, a panel of the Commonwealth Court of Pennsylvania, using a "totality of the circumstances" approach concluded that the facility failed to donate a substantial portion of its services, and failed to show it benefits a substantial and indefinite class of persons who are subjects of charity. See Friends Boarding Home of Western Quarterly Meeting v. Commonwealth, 260 A.3d. 1064 (Pa. Commw. 2021).
The case is now under review for en banc consideration by the full Commonwealth Court, and there are indications the case might go all the way to the Pennsylvania Supreme Court. Working with my former Elder Protection Clinic colleague, Douglas Roeder, Esq., we examine a series of cases and trends under Pennsylvania law, including those involving senior living enterprises, as reasons to consider larger implications for federal and state exemptions based on charitable grounds. See Putting the Charity Back in Purely Public Charities (July 2022).
July 25, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, July 1, 2022
The National Academies on Sciences, Engineering, and Medicine has released a new report, The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff (2022).
Nursing homes play a unique dual role in the long-term care continuum, serving as a place where people receive needed health care and a place they call home. Ineffective responses to the complex challenges of nursing home care have resulted in a system that often fails to ensure the well-being and safety of nursing home residents. The devastating impact of the COVID-19 pandemic on nursing home residents and staff has renewed attention to the long-standing weaknesses that impede the provision of high-quality nursing home care.
With support from a coalition of sponsors, the National Academies of Sciences, Engineering, and Medicine formed the Committee on the Quality of Care in Nursing Homes to examine how the United States delivers, finances, regulates, and measures the quality of nursing home care. The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff identifies seven broad goals and supporting recommendations which provide the overarching framework for a comprehensive approach to improving the quality of care in nursing homes.
Thursday, June 30, 2022
The 6th Annual Oregon AG Elder Abuse conference will be held October 20-21, 2022 in Bend, OR. Conference organizers are seeking proposals. Here is the info
Request for Presentations is NOW OPEN! Presenters at Attorney General Rosenblum’s Annual Elder Abuse Conference are the heart and the soul of this annual event. Each year over 20 professionals with expertise related to elder abuse are selected to present to nearly 200 attendees. If you would like to be a presenter at the 2022 conference, please complete the Request for Presentations by July 1, 2022 and submit it electronically to ElderAbuse@doj.state.or.us.
If you want to submit a proposal, remember the deadline is tomorrow!
Saturday, June 11, 2022
Two Hundred Years of Guns.... What if you knew the outcome when you were writing the Second Amendment?
Alexander Merezhko, a good friend since he was a visiting Fulbright Scholar at Dickinson Law from his home country of Ukraine, is now a member of Ukraine's parliament and a senior legal advisor to President Zelenskyy. We email regularly about events in our respective countries; of course, there is a lot for us to discuss. Recently, Alexander mentioned that discussions were underway about legalizing individual gun ownership in his country. Suffice it to say, Professor Merezhko is worried about what happens after the war. It seems likely the assault by Russian forces motivates those debates in Ukraine, but what about the future? A similar struggle, America's own then-recent war for independence, was part of the context for the language of the Second Amendment to the U.S. Constitution, beginning with the words, "A well regulated Militia, being necessary to the security of a free State...."
Could America's Founding Fathers have dreamed that the contextual phrase would be dismissed as significant and the remaining words of the Second Amendment would be treated as a mandate that permits unrestricted sales of weapons to individuals who are not part of any well-regulated system? There is a very interesting article with historical details I've never considered in The New Yorker, titled How Did Guns Get So Powerful?From the article by Phil Klay:
We wonder how we got here. How did guns grow so powerful—both technically and culturally? Like automobiles, firearms have grown increasingly advanced while becoming more than machines; they are both devices and symbols, possessing a cultural magnetism that makes them, for many people, the cornerstone of a way of life. They’re tools that kill efficiently while also promising power, respect, and equality—liberation from tyranny, from crime, from weakness. They’re a heritage from an imagined past, and a fantasy about protecting our future. It’s taken nearly two hundred years for guns to become the problem they are today. The story of how they acquired their power explains why, now, they are so hard to stop.
Why am I writing about guns (again) in the Elder Law Prof Blog? The need for better support for mental health for youth and elders is part of what needs to be addressed. Sadly, guns are part of a larger story not just for 18 year-olds in New York or Texas, but also for older Americans, as "firearm suicides are one of the leading causes of death for older Americans." See Firearm Suicides in the Elderly: A Narrative Review and Call for Action, published in 2021 in the Journal of Community Health.
June 11, 2022 in Cognitive Impairment, Crimes, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, International, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, May 26, 2022
Yesterday I wrote a blog post about gun use that several of my friends correctly characterized as heartfelt. Of course, legal research is merited, and I find that my view echoes what is written in a key section of a very recent opinion:
Beyond these significant safety concerns, contemporary scientific research increasingly sheds light on the relative immaturity and incomplete cognitive development of young adults. California cites to evidence that young adults are less mature than older adults, which leads them to take more risks and behave more reactively than their elders. Young adults are thus quicker to anger than older adults and more vulnerable to intense mood swings and to making instinctive, rather than considered, decisions. This cognitive immaturity makes young adults more likely to use firearms in situations of significant emotional arousal or perceived threat, or other situations that require rapid, complex information processing. Other Circuits have credited similar evidence to uphold regulations on firearms affecting 18 to 20-year-olds. NRA, 700 F.3d at 208; Horsley v. Trame, 808 F.3d. 1126, 1133 (7th Cir. 2015). The semiautomatic rifle regulation helps to “ensure that access to these weapons is restricted to mature individuals who have successfully completed safety training,” such as members of law enforcement and the military, “furthering the public safety objectives and ensuring that the Founding Era balancing of Second Amendment rights with safety concerns continues today.” Jones, 498 F. Supp. 3d at 1328.
Unfortunately, this is from the dissenting opinion in Jones v. Bonta, decided by the 9th Circuit with an opinion issued less than two weeks before the shooting in Uvalde, Texas. Sigh.
Or, as the always astute Professor Naomi Cahn observes, "The irony of the timing of such a ruling is beyond distressing."
Wednesday, May 25, 2022
I suspect I'm not alone in thinking about guns this morning in the wake of the Texas shooting at a grade school in Uvalde Texas. This post reflects matters I've been thinking about for a long time. Indeed, thirty years ago I considered making gun violence a core academic research topic, until I realized how potent is the lobby supporting gun sales, and therefore gun ownership.
First, this morning I listened to a young man, David Hogg, speaking to an NPR interviewer about his own frustrations in opposing gun violence. He urged legislators at state and national levels to do at least "one thing" to move forward on gun safety legislation. My first reaction was "one thing?" How is that going to help?
Second, I heard a bit more about the background of the 18 year old shooter in Texas, as well as the background of the similarly-aged shooter in Buffalo New York. More memories. In one of my previous lives, I volunteered for a neighborhood tutoring program in New Mexico. My first two students, in high school, had been sent to the program by judges trying to help youths in crime-related incidents. One young man attended once -- and then disappeared.
I managed to have a good session with the other student, a junior in high school, who at my request wrote a short essay about what he saw as his future. The 500 word piece was quite well written, and gave us something we could definitely use to gently work to improve his reading and writing skills. The focus, however, proved to be a window into the bleak outlook of a young man who was involved in a so-called gang. To put it simply, he saw no future for himself after high school. He said with utter confidence that his high school "had" to graduate him regardless of whether he did any more work, as long as he merely attended class. I didn't want to believe that, but he had plenty of evidence to support his hypothesis. He didn't have any post graduation plans. He had equal confidence that he probably wasn't going to make it to age 21. The following week during our tutoring session, he was creative in his resistance to my role as a tutor. He turned in his next essay, but it was written entirely in what was some sort of "tagger's script," the stylized script he used when spray-painting his messages on public building. Tagging was his only crime at that moment.
I eventually decided to volunteer for younger students, and in fact I had a two-year working student-tutor relationship with a grade school boy who was in the program at his mother's insistence. Actually, I got to know the whole family, including his parents and a sister who also sometimes attended our reading sessions (and she helped turn reading into a competitive adventure). To mark the success of his "graduation" from the program, we went to a Phoenix Suns basketball game, because the opposing team that day had a player much admired by my student. At his comparatively "youthful" age, he had written about his plans for the future, including somehow, against all genetic odds, planning to "grow" tall enough to be a professional basketball player, like his idol, Nate Archibald. We talked about coaching as an alternative -- just in case.
I remember the difference in these individuals as I listen to the troubled histories of the two "boys" who bought guns as part of their 18th birthday celebrations. I don't know what happened to most of the other the students involved in the tutoring program. The second student dropped out of the program for reasons I never learned, but I later saw his name in the newspaper when he was accused of being the driver in a car-jacking where his "friend" shot the woman who resisted having her car taken. Sadly, that student's essay was prophetic, as any true dreams for a future may have ended with that crime.
So, if we are going to do at least "one thing," could we -- should we -- focus on raising the threshold age for gun ownership? Should we give young people in their late teens more time to grow older (and "taller" or more mature) and thus to reach a point where the future seems brighter? I'm not suggesting they cannot participate in shooting sports, hunting, and the military, where we hope their use and skill building would be supervised by knowledgeable people. I am suggesting making it unlawful for them to "own" or at least to purchase guns until they are older. Research suggests that substantially more crimes of gun violence against others are committed by individuals between the ages of 17 and 21. There is research to support restricting gun ownership (and therefore gun sales) to individuals over 21 as one step forward in terms of safety.
For example, in June 1999, a "collaborative report" under the auspices of the U.S. Department of Justice noted in part:
In 1996, 26,040 people in the United States were killed with guns. In 1997, offenders age 18, 19, and 20 ranked first, second, and third in the number of gun homicides committed. Of all gun homicides where an offender was identified, 24 percent were committed by this age group, which is consistent with the historical pattern of gun homicides over the past 10 years.
Other statistics suggest that gun-related suicide death rates are highest for females age 45 to 64 and for males age 75 and older, statistics that point to another form of age-specific gun tragedies. Age matters.
That first boy who "disappeared" after the first tutoring session? I later learned he had been killed in a neighborhood shooting. Would younger adults support delayed lawful-ownership as one form of protection against gun violence? Certainly, more is needed on so many other levels including mental health supports. But could "one thing" -- at least -- include blocking gun sales to people who are still in the process of learning to plan for the future, for their futures?
Sunday, May 8, 2022
It is Sunday, and I'm looking at a long list of things to do next week, with grading exams at the top of my list. Significantly, however, in the last six to eight months, at increasing rates, I'm hearing from current and prospective residents of Continuing Care Retirement Communities (CCRCs, also sometimes called Life Plan Communities). Here are examples of some of the most often asked questions:
- "The company that runs my CCRC is about to engage in development of a new CCRC. Is the money I've already paid in the form of an admission fee, or the money I continue to pay as monthly service fees, going to support this new development?"
- "During the lock-down associated with protecting residents and the public from COVID-19, we were asked to give up services that were the very reason we choose this community. But now that we are no longer locked down, the services either are not returning or the fees we are charged are actually increasing. Is there some effective way to object to this disconnect between the promises and the delivery of services?"
- "My parents are thinking about moving into a CCRC. On the one hand, I like the idea of the active community they are choosing. But on the other hand, the amount they are expected to pay in the form of an admission fee is astounding. Why are some communities calling this a refundable fee and others are saying it isn't a refundable fee? What are the protections for the 'refundable' fee?"
- "We have just learned that our nonprofit CCRC is being transferred to a for-profit company as the owner-operator. How is this likely to impact my wife and I as residents?"
Answers to many of these questions depend on the state's laws governing this form of senior living operation and, even more, on the particular contracts between the resident and the provider. State regulators have concerns here too. For those looking for legal assistance in their particular community, I sometimes recommend looking for attorneys in the caller's home state, someone who understands CCRCs from a resident perspective. I first wrote about the need for attorneys who understand resident perspectives in 2006.
Sometimes "elder law" attorneys have this expertise, but not always. Plus, it can be important to consult with an attorney who understands consumer protection laws, and not "just" CCRC law. Finally, if litigation is actually on the horizon, the choice for legal advice can depend on whether the attorneys have expertise in litigation or dispute resolution and not "just" contract law.
So, all of this is a short way of saying that even though, as an legal academic, I often write about the importance of resident rights in CCRCs, and even though I believe the future of CCRCs is very much tied to the answers, I'm not in a position to respond to individual questions. The very fact that I'm writing this Blog Post is a potential indication that something important could be going on in the industry. Perhaps that "something" should be addressed by the industry itself, especially if it wants the CCRC concept not just to survive, but thrive. In my opinion, it is not enough for the industry to say that "every CCRC is different."
Tuesday, May 3, 2022
RFP: Washington State Seeks Expert Consultation to Develop CCRC Regulations with Heightened Consumer Protections
I'm always interested when I start getting lots of calls or emails about a certain topic in aging. Today I was hearing from a lot of people wanting to talk about Continuing Care Retirement Communities (CCRCs, sometimes also called Life Plan Communities or LPCs). It is safe to say that all forms of senior living operations are facing new challenges after being hit hard by the lockdowns and staffing problems of the last two years with COVID-19.
But one of the most interesting set of calls was from the State of Washington, where residents have been using their time together during COVID to think carefully about the need for certain key protections for consumers who put their money and trust into CCRCs. The Washington Continuing Care Residents Association (WACCRA) has worked carefully, calmly and diligently to reach the ears of legislators and regulators in the state. I had the pleasure of hearing from members and residents of CCRCs in Washington last October and speaking at their annual meeting.
Today, I heard that the Office of Insurance Commissioner in Washington has initiated a Request for Proposals for a time-sensitive research project:
This project is designed to assess federal and state authorities regulating continuing care retirement communities (CCRCs) and provide a report with recommendations on creating a legal framework for shared regulatory oversight of CCRC products under Chapter 18.390 RCW, which may achieve heightened consumer protections.
Interested researchers -- with background in regulatory systems for CCRCS -- should act quickly as the deadline for submissions is May 23, 2022.
Friday, April 29, 2022
As is true with several U.S. states, Virginia has a filial support statute that can obligate adult children to support their parents. The key language of VA Code Ann. Section 20-88 provides:
It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.
If there be more than one person bound to support the same parent or parents, the persons so bound to support shall jointly and severally share equitably in the discharge of such duty. . . .
This section shall not apply if there is substantial evidence of desertion, neglect, abuse or willful failure to support any such child by the father or mother, as the case may be, prior to the child's emancipation or, except as provided hereafter in this section, if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program. . . .
There are few modern cases applying this law. In Peyton v. Peyton, an "unreported" Virginia chancery court decision from 40 years ago, the court applies the law to obligate one brother to reimburse another brother $8,000, representing half of the past out-of-pocket expenses for their mother's care in a nursing home. A careful reading of the Peyton case reveals one of the challenges of applying filial support laws when used to collect "back" expenses; here the second son was willing to pay a portion of their mother's monthly costs going forward but he was not successful in arguing a statute of limitations should apply to prevent liability for multiple years of back claims.
As with other American states that have had forms of filial support laws, Virginia's law was enacted as an alternative to public welfare laws because the common law generally found no legal duty for adult children to support indigent parents. But, in Virginia, again as in most American states, the filial support laws are largely dormant, misunderstood or ignored, especially after Social Security, Medicare, and Medicaid laws were enacted on a federal level beginning in the 1960s.
Virginia's statute was amended decades ago to restrict use of the law by the state to seek reimbursement for its costs in providing public services (such as "medical assistance" a/k/a Medicaid). However, unlike the filial laws of most states, Virginia's law permits criminal prosecution as a misdemeanor for "any person violating the provisions of an order" of support under this statute, with a fine not exceeding $500 or imprisonment in jail for up to 12 months. I find no reported cases of criminal enforcement actions.
Recognizing that other states (including neighboring Maryland in 2017) had recently taken formal action to repeal filial support laws as outdated or impractical, Virginia Senator Adam Ebbin introduced 2022 Senate Bill 389 to repeal Virginia's law. Senator Ebbin's bill passed with no dissenting votes in the Virginia Senate. The final vote in the Virginia House, on March 11, 2022, supported repeal with 81 voting in favor, and only 16 members voting in opposition to repeal. In other words, repeal was not a controversial measure; rather it appeared to be part of an attempt to clean-up hoary laws, and it attracted strong bipartisan support.
Nonetheless, Virginia Governor Glenn Youngkin (sworn into office in January 2022) vetoed the repeal on April 11, 2022. His reasoning for preserving filial support laws is unique, at least in my 20-some years of experience researching filial support laws (see e.g., Filial Support Laws in the Modern Era: Domestic and International and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder Law Journal 269 (2013)).
The governor's veto statement explains:
"Primarily, the Commonwealth's filial responsibility law supports those who care for their elderly parents. In establishing a bankruptcy budget, the court allows for necessary and reasonable expenditures and the repeal of Section 20-88 could prevent an individual from covering these expenses within the budget of their debtor. For those undergoing bankruptcy proceedings, there is a grave risk of unforeseeable and unintended consequences, which may harm people going through some of the most difficult times in their lives."
On the one hand, in today's torn asunder political scene, no one should be surprised that a newly elected governor of one party would be vetoing legislation sponsored by a member of the other party -- and that is true here, with a Republican governor vetoing a bill proposed by a Democrat.
But what about the proffered reason for the veto? Virginia's law does not "primarily" support those who care for their elderly parents. Rather, it creates an obligation for adult children. Is there any precedent for a theory that Virginia's filial support law permits some type of sheltering of assets for a debtor in bankruptcy court, to provide a means of financial support for the (also) destitute parent? Certainly I find no modern cases on Lexis or Westlaw suggesting such use or even a need for such use.
There is a reported case from 1938 in Virginia. In Mitchell-Powers Hardware Co. v. Eaton, 198 S.E. 496 (Supreme Court of Appeals, VA 1938), the court addressed a question of whether a transfer of valuable stock by a debtor to his sister was voidable as an invalid gift. Was this an invalid attempt to defeat a legitimate creditor's lien against the asset? The court recognized that under Virginia's predecessor version of Statute 20-88, the debtor "could" have an obligation to assist his sister in the care of their elderly mother. The appellate court remanded the case for a jury determination of whether the mother was actually destitute and in need of the son's financial support. (The sister had further transferred the stock in question onward to the debtor's son). This hardly seems a persuasive case for characterizing filial support laws as necessary "support for those who care for their elderly parents."
April 29, 2022 in Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, April 18, 2022
NPR among other news agencies, reported on a new law signed by the Florida governor about 2 weeks ago, New laws let visitors see loved ones in health care facilities, even in an outbreak. As the U.S. News article, DeSantis Signs Hospital Visitation Bill, Other Legislation, explains, "[t]he visitation bill requires that health care facilities, including nursing homes, allow in-person visits during end-of-life situations and in most other cases. DeSantis and other state health officials said the measure was inspired by hospitals limiting visits during the coronavirus pandemic... Under the law, health care facilities have to establish visitation rules that include infection control and education policies for visitors. The policies cannot be more stringent than safety rules applied to the facility's staff and may not require proof of any vaccination or immunization. A health care center can suspend in-person visitation for specific people if they violate rules."
Thursday, April 14, 2022
AARP has launched a new initiative to fight gift card scams. This is a super important project! According to the website,
With gift card fraud, a scammer may pretend to be someone they are not in an attempt to convince the unsuspecting person to pay them in gift cards. This type of scam can take many forms: • The scammer, claiming to be from “tech support,” says there is something wrong with a person’s computer, and that the person will need to pay in gift cards in order for tech support to fix the problem. • Posing as a user of a dating site, the scammer says they have an emergency and need another site user to help them by buying them gift cards. • Through a phone call the scammer pretends to be a relative in trouble who needs their target to send them gift cards. • Claiming to be from the IRS or Social Security, the scammer states that the person has a fine or owes back taxes that can only be paid by gift card. • The scammer impersonates the target’s utility company and threatens to shut off service unless they pay an overdue bill with gift cards.
More information about the scam and the training of retail employees is available here.
Sunday, April 3, 2022
A bill, Stop Unfair Medicaid Recoveries Act, has been introduced in Congress to repeal Medicaid Estate Recovery and to limit liens. The bill, HR 6698 addresses the elimination of estate recovery this way:
“(6) Notwithstanding any preceding provision of this subsection, no adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be initiated, maintained, or collected on or after the date of the enactment of this paragraph. Not later than 90 days after such date, a State shall withdraw any lien in effect as of such date with respect to such medical assistance correctly paid.”
Thursday, March 31, 2022
Earlier this week I blogged about a recent development with the Oregon statute. In a recent story in the Colorado newspaper, it's reported that there has been an uptick in requests for aid-in-dying in Colorado. Number of patients who sought medication to end their lives under Colorado’s aid-in-dying law on the rise offers this information:
Last year, 222 people obtained prescriptions for the lethal doses of medication, which they must ingest themselves after getting approval from two physicians who certify that they have a terminal illness and fewer than six months to live. That brings to 777 the five-year total prescriptions since the End-of-Life Options Act was passed, according to a recently completed report on the law by the Colorado Department of Public Health and Environment. The department tracked how many of those 777 prescriptions were dispensed — 583 — but is not required to follow up with patients’ families or doctors to find how many of those patients actually took the medication.
More data is available in the article, as well as the report from the Colorado Department of Public Health and Environment. The article also discusses a study from a researcher at the University of Colorado School of Medicine.
Tuesday, March 29, 2022
The Associated Press reported that Oregon ends residency rule for medically assisted suicide. A lawsuit challenging the residency requirement had been filed and as a result of a settlement, "Oregon will no longer require people to be residents of the state to use its law allowing terminally ill people to receive lethal medication, after a lawsuit challenged the requirement as unconstitutional. ... [T]he Oregon Health Authority and the Oregon Medical Board agreed to stop enforcing the residency requirement and to ask the Legislature to remove it from the law." The suit addresses an issue faced by doctors who "had been unable to write terminal prescriptions for patients who live just across the Columbia River in Washington state. [Even though] Washington has such a law, providers can be difficult to find in the southwestern part of the state, where many hospital beds are in religiously affiliated health care facilities that prohibit it." The article indicates that advocates intend to challenge the residency requirement in other states with aid-in-dying laws. Stay tuned.
Thursday, March 17, 2022
According to a recent article in Kaiser Health News, Despite Seniors’ Strong Desire to Age in Place, the Village Model Remains a Boutique Option, "[t]wenty years ago, a group of pioneering older adults in Boston created an innovative organization for people committed to aging in place: Beacon Hill Village, an all-in-one social club, volunteer collective, activity center, peer-to-peer support group, and network for various services. Its message of “we want to age our way in our homes and our community” was groundbreaking at the time and commanded widespread attention. Villages would mobilize neighbors to serve neighbors, anchor older adults in their communities, and become an essential part of the infrastructure for aging in place in America, experts predicted." Fast forward to now. where even though "there are 268 such villages with more than 40,000 members in the U.S., and an additional 70 are in development ... those numbers are a drop in the bucket given the needs of the nation’s 54 million older adults. And villages remain a boutique, not a mass-market, option for aging in place."
What exactly is a "Village" you ask? The article explains the concept: "[they] share common features, although each is unique. Despite their name, physical structures are not part of villages. Instead, they’re membership organizations created by and for older adults whose purpose is to help people live independently while staying in their own homes. Typically, villages help arrange services for members: a handyman to fix a broken faucet, a drive to and from a doctor’s appointment, someone to clean up the yard or shovel the snow. Volunteers do most of the work." They also offer educational and social events and facilitate introductions to other residents of the village.
The question posed by the article is whether this concept can have widespread acceptance and adoption with various socio-economic groups, especially given their costs. The article discusses some options pursued by existing villages, in addition to discussing the hurdles.
Tuesday, February 22, 2022
The executive summary points out the
Issues identified in this guide which are critical for planners to consider include: • Strengthening protections and enhancing rights of persons subject to guardianship • Identifying alternatives to guardianship including supported decision-making • Providing meaningful due process including access to counsel
• Identifying opportunities for modification, termination, and restoration of rights • Identifying, tracking, and documenting the number of guardianship cases and adoption of data standards • Implementing meaningful guardianship monitoring • Formalizing a process for bringing complaints or concerns to the attention of the court • Developing response protocols for abuse, neglect, or exploitation • Developing readily accessible materials for the public including clear, plain language forms and informational resources • Developing and institutionalizing training programs and materials for judges and court staff, judicial officers, managers, staff, and volunteers to include specialized training to recognize and identify abuse, neglect, and exploitation • Developing and institutionalizing training programs for guardians • Maintaining and strengthening relationships between the courts and the local probate bar while promoting the importance of court-community collaboration • Regularly evaluating guardianship processes and outcomes.
The guide includes several appendices and resources. The section on the future offers this "This Guide challenges court managers to make efforts that will lead to improvements in the way courts handle cases involving our most vulnerable adults. NACM underscores the need for prioritization and funding of the management of guardianship cases, while offering practices and models that can be implemented—some at little or no cost—to bring court practices in line with recommendations of the Fourth National Guardianship Summit and the NPCS."
If you go through the NACM website, although the guide is free, you may have to set up an account to download it. It will be posted on the National Center for State Courts website (I checked on 2/22/22 and the updated guide had not yet been posted).You can download the 76 page guide directly here.
On an unrelated note, University of Illinois College of Law is looking for a Dean of Students & Assistant Dean for Academic Administration. For info about the position or to apply, "submit a resume, cover letter, and the names and contact information of three professional references at : https://jobs.illinois.edu/academic-job-board/job-details?jobID=159975&job=assistant-dean-for-student-services-dean-of-students-college-of-law-159975 by March 31, 2022. For assistance with the application system, please email email@example.com."
The cool part of the job-you get to work with elder law Rockstar, Professor Richard Kaplan!