Tuesday, September 17, 2019

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

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

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

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

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

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

Friday, September 6, 2019

Mediation & Arbitration in Florida Probate Rules?

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

Here's some info about the proposed rules:

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

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

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

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

The proposed rules are available here.

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

Mediation & Arbitration in Florida Probate Rules?

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

Here's some info about the proposed rules:

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

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

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

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

The proposed rules are available here.

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

Wednesday, September 4, 2019

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

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

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

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

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

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

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

Tuesday, September 3, 2019

Financial Fraud in US Upcoming Conference

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

Featured Keynote: Cybercrimes, Digital Fraud and You

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


Sessions include:

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

To register, click here.

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

Friday, August 30, 2019

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

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

Would You Please Just Fix It?

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 27, 2019

Do POLST Forms Require Authorizing Legislation to be Effective?

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

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

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

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

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

Monday, August 26, 2019

Abuse of SNF Resident On Video

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

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

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

Wednesday, August 21, 2019

Recent Developments on Guardianship Laws

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

 (a) FINDINGS.—Congress finds the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, August 16, 2019

Medical Aid in Dying in NJ on Hold

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

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

Stay tuned.

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

Thursday, August 15, 2019

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

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

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

 

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

 

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

 

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

 

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

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

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

Wednesday, August 14, 2019

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

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

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

Presenters will share:

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

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

To register, click here

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

Wednesday, August 7, 2019

Coordinating Treatment, Including Cancer Treatment, for Patients Represented by Guardians or Other Agents

This summer I've been working with a dynamic interdisciplinary team to create a series of online educational modules for guardians and other agents working with adults in Pennsylvania.  Our shorthand name for the 18-month endeavor is the Pennsylvania Guardian Education Project and it is funded by an important Penn State Strategic Initiative Grant.  The work has been daunting at times, but always interesting. 

Pennsylvania Guardian Education ProjectWe have law students researching and writing detailed outlines on Pennsylvania law and national best practice standards for guardians, and then refining those outlines to create scripts under the guidance of Penn State experts in health care, behavioral sciences and online adult education.  We are also filming interview segments featuring  judges, guardians (both lay guardians and certified professionals), social workers, lawyers, advocates and ombudsmen.  Last week we were in the greater Philadelphia area while filming (that's Ben Franklin on the top of City Hall in the background, with filming crew Mimi Miller, Christoper Riley, and Luke Gibson, all Dickinson Law students). Philadelphia Filming Team August 2019

Our hope is that most of the camera work will be completed before Dickinson Law classes resume later this month, but the additional hard work of editing and crafting the interactive units for publication will continue over the fall.  

Mimi Miller  Class of 2021  Presentation at Penn State Cancer Institute August 2019Our lead research assistant, Mimi Miller (Dickinson Law, '21) has pre-law experience as a Certified Nursing Assistant (CNA) working with older adults, and thus has uniquely practical insights into the challenges for families when coordinating care for impaired loved ones.  Her work with health care members of the grant team, including Dr. Eugene Lengerich, a member of Penn State's Cancer Institute and on the faculty of Penn State's Public Health Sciences program, led to an invitation to "flip" our educational efforts, by making a presentation to health care researchers and clinicians about what guardians are -- and aren't -- permitted to do when making health care decisions for their clients.  The first step in this new collaboration occurred yesterday at Penn State's Cancer Institute Retreat, where Mimi was one of more than 60 presenters and the only law student to present.  Congratulations, Mimi!  

August 7, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, August 6, 2019

8 States Now Provide Aid in Dying Laws; 9th State Will in About a Month

With the New Jersey law going into effect last week (August 1, 2019), there are now 8 states that allow medical aid in dying, according to a recent New York Times story, Aid in Dying Soon Will be Available to More Americans. Few Will Choose It.

 

Maine's law becomes effective September 15, 2019, about 5 weeks from now.   So with 9 states providing that option, "by October, 22 percent of Americans will live in places where residents with six months or less to live can, in theory, exercise some control over the time and manner of their deaths. (The others: Oregon, Washington, Vermont, Montana, California, Colorado and Hawaii, as well as the District of Columbia.)"  Even with these laws in place, there are still issues facing the patients, the story explains.  There is "an overly complicated process of  requests and waiting periods" as well as the  sections of the law that allows doctors to opt-out, so access may be limited.

 

The article also discusses why there seems to be a "trend" (if you call 9 states a trend) toward changing attitudes regarding medical aid-in-dying:

All these laws require states to track usage and publish statistics. Their reports show that whether a state has six months or 20 years of experience, the proportion of deaths involving aid in dying (also known, to supporters’ distaste, as physician-assisted suicide) remains tiny, a fraction of a percentage point.

California, for example, in 2017 received the mandated state documents for just 632 people who’d made the necessary two verbal requests to a physician, after which 241 doctors wrote prescriptions for 577 patients. More than 269,000 Californians in all died that year.

With such data showing no slippery slope toward widespread use or abuse, “a lot of the hypothetical claims our opponents made no longer carry so much weight with lawmakers,” said Kim Callinan, chief executive of Compassion & Choices.

There is even a change within the health care profession re: this issue, but there are still opponents to it. Even those who support it may not use it, and the process within the law may provide barriers to patients, according to the article.  Safeguards in the laws may be imposing obstacles to some including the waiting period, the 6 month limit and others.

Clearly this is a topic on which we still will see developments. So....stay tuned.

August 6, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Sunday, August 4, 2019

NJ Medical Aid in Dying Now in Effect

The New Jersey law allowing medical aid in dying went into effect at the beginning of the month.  According to a story from one of the ABC affiliates,

The law requires two doctors to sign off on the request and that the terminally ill patient be deemed an adult resident of New Jersey who can make such a decision and who voluntarily expresses a wish to die.

It requires patients to request the medication twice and says they must be given a chance to rescind the decision. At least one of the requests must be in writing and signed by two witnesses.

At least one witness cannot be a relative, entitled to any portion of the person's estate, the owner of the health care facility where the patient is getting treatment or a worker there, or be the patient's doctor.

Under the law, patients must administer the drug to themselves, and his or her attending physician would be required to offer other treatment options, including palliative care.

August 4, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 2, 2019

State Payroll Tax for Long-Term Care?

I debated a bit about the title to this post, thinking I should call it-outliving your ability to pay for long-term care. But I think the interesting point to this post is not that potential but what one state has done to fund public long-term care.  Pew Stateline ran this story, Getting Older, Going Broke: Who’s Going to Pay for Long-Term Care? Here's what is going on.

Washington state created the first public long-term care insurance plan, which will be funded through payroll taxes.

In 2017, Hawaii began providing up to $70 a day to residents who work while also taking care of elderly family members at home. Hawaii pays for the program, Kupuna Caregivers, out of its general budget.

The state estimates 154,000 residents are the unpaid caregivers of elderly family members. Kupuna Caregivers currently helps 134 Hawaiians pay for transportation, adult day care, personal care services and home-delivered meals.

Another Hawaii program, Kupuna Care, provides services to seniors in need of help with daily activities. This year, lawmakers passed a series of elder care bills, adding $11.2 million to the $9.7 million appropriated in the state’s budget.

A handful of other states, including Arizona, California, Michigan and Minnesota, also are exploring public long-term care options for people who otherwise might have to spend down their assets to qualify for Medicaid.

The article also notes that one member of the U.S. Congress has proposed a Medicare long term care benefit (would this be Part F?)

Here's a little more about the various states' actions

Minnesota is considering two private-sector options to address the problem. One would be to require insurers’ supplemental Medicare policies to include limited home chore benefits. That approach would cost beneficiaries about $8 a month... [and the] other would be to allow the sale of term life insurance policies that convert to a long-term care product once the beneficiary reaches retirement age....

In October, Michigan officials will begin studying what the state can do to help residents pay for long-term care. Illinois lawmakers this year also ordered a study to calculate how many seniors are likely to need long-term care; the possible financial impact on their families; the availability of caregivers and the tax implications of a state-run long-term care program.

The Arizona Senate passed a bill in April that would create a pilot program providing grants of up to $1,000 a year to reimburse caregivers taking care of disabled family members at home. The program would be paid for out of a $1.5 million a year fund included in the state budget....

And in California, where the population over 65 is projected to nearly double to 8.6 million in the next decade, lawmakers recently approved a $1 million study to weigh the costs of different long-term care plans.

. . .
 Washington’s new state-operated plan will pay lifetime benefits of up to $36,500 to help people pay for in-home care (provided by a professional or a family member), assisted living, or a nursing home. It will be funded through a payroll tax of 0.58% for all workers. (Self-employed people can opt in.) But the state won’t begin making payroll deductions until 2022, and benefits won’t kick in until 2025.

Not every state is on this bandwagon, however.  "Last year, Maine voters overwhelmingly rejected a ballot initiative that would have raised income taxes by 3.8% to pay for a long-term care plan." Interesting stuff.

August 2, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 1, 2019

Oregon PAD: Shorter Wait Time for Certain Patients

The Washington Post reported an updated development for Physician-Aided Dying in Oregon. Oregon removes assisted suicide wait for certain patients explains that the governor signed a bill that allows individuals who have 15 or less days to live to skip the 15 day cooling off period.

Those seeking life-ending medications had to make a verbal request for physician-assisted suicide, wait 15 days and then make a written request. They then had to wait an additional 48 hours before obtaining the prescription.

Under the new amendment, doctors can make exceptions to the waiting periods if the patient is likely to die before completing them.

The article discusses the position of those who opposed the amendment and notes that the number of folks availing themselves of PAD remains low.

The number of people who have taken advantage of Oregon’s law has been relatively small. Since it enacted the nation’s first physician-assisted suicide law in 1997, nearly 1,500 people died from taking life-ending medications prescribed to them by a physician. In 2018, about 46 per every 10,000 deaths could be attributed to the state’s death with dignity law, according to state data.

August 1, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Wednesday, July 31, 2019

SNF, ALF & Backup generators in Florida

So here in Florida it's pretty hot (and believe me when I say we in Florida are used to it being hot, but it's hotter). Ok, ok, just like most of the country-it's hot. Frequent readers of this blog know the stories about the Florida law requiring SNFs and ALFs to have back-up generators after Hurricane Irma. Guess what? Not all of those that are required to do so, have done so, according to a recent story. Hundreds of Tampa Bay area nursing homes, assisted living facilities still without backup power gives us some quick stats on the situation:

[M]ore than 1,000 elder care facilities across Florida still don’t have permanent generators in place to keep residents cool during power outages... [and] review of records from Florida’s Agency for Health Care Administration uncovered:

  • In the Tampa Bay area, 125 nursing homes and 160 assisted living facilities don't have approved, permanent generators in place.
  • A new state law fines facilities as much as $1,000 per day for failure to install permanent generators, but records show facilities without generators rarely paid fines.
  • Many of these facilities avoided fines by receiving state-approved extensions — blaming installation delays or financial hardships.

The article discusses allowable extensions and looks at the number of facilities in Florida that have... and have not... complied.  The story includes a super-cool interactive map that allows you to click on a facility and get info about it in a pop-up box. Hurricane season started June 1 and runs through November. Here in the Tampa Bay area, it seems the tropics heat up for us around Labor Day (based on my unscientific observation of living here for decades) so let's hope we get through yet another hurricane season unscathed. But, let's also remember the folks in the Florida panhandle who got hit last year and still haven't recovered.

July 31, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 26, 2019

Brief Report from Pennsylvania's 2019 Elder Law Institute

The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19.  One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law.  This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices.  She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships.  That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships.  As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court.  I'll write more about these issues and my project soon.

I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania.  Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania.  In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at  Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities.  The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times. 

Points of strongest interaction included issues surrounding an individual or couple's assets.  CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents.  Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission.  One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from  the administrators of the CCRC.  A similar question arose in connection with "refundable" entrance fees.   In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years.  We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods.  I can see another article in my future on these topics.  

July 26, 2019 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, July 23, 2019

Uniform Law Commissioners Approve New Act on Electronic Wills

The Uniform Law Commission recently concluded its annual meeting where the commissioners approved 5 new acts, including one on electronic wills.  Here is a summary

The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect.  Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form.  Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format.  But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states.  Under the new Electronic Wills Act, the testator's electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file.  States will have the option to include language that allows remote witnessing.  The act will also address recognition of electronic wills executed under the law of another state.  For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.

To read the act as approved, click here. The committee's issues memo is available here.

July 23, 2019 in Consumer Information, Current Affairs, Estates and Trusts, Other, State Statutes/Regulations | Permalink