Monday, July 20, 2009

New Cause of Action under FINRA Found

A decision issued on June 30, 2009, by a three-judge panel of the U.S. Third Circuit Court of Appeals, in Sarah Grammer v. John J. Kane Regional Centers-Glen Hazel (PDF, 23 pages), likely will impact nursing home and rehabilitation facilities that provide care subject to the Federal Nursing Home Reform Amendments (FNHRA).

The decision
reversed a ruling by the United States District Court for the Western District of Pennsylvania, and, by its fresh interpretation of FNHRA, recognized new causes of action under those amendments to federal law.

The decision was noted by
Professor Katherine C. Pearson, who is the Director of the Elder and Consumer Protection Clinic, of Penn State - Dickinson School of Law, and who now is Chair of the Elder Law Section of the Pennsylvania Bar Association. She sent me an email message with a link to her web article about the decision, and granted me permission to repost it. I do so now (reparagraphing & links applied), with thanks to her.

Advocates for elders and disabled persons in nursing homes have long been frustrated by the absence of an express cause of action in federally imposed “Nursing Home Residents Rights,” a key feature of the Nursing Home Reform Act (NHRA) at 42 U.S.C. § 1396r.

On June 30, 2009, however, the
Third Circuit Court of Appeals ruled in the case of Sarah Grammer v. John J. Kane Regional Centers-Glen Hazel that a private cause of action does exist under federal civil rights laws, at 42 U.S.C. § 1983, for violation of the resident’s rights under the NHRA. State action, necessary for a civil rights suit, existed because the defendant facility was a county-operated home.

In 1987, Congress enacted key nursing home reform laws in an effort to respond to widespread complaints about quality of care in facilities that were accepting Medicare and Medicaid dollars. Until that legislation, it was not uncommon to hear complaints about aged residents routinely being restrained in beds or chairs to prevent wandering, or being heavily medicated solely to make the residents easier to “manage.”

The Nursing Home Reform Act for the first time mandated that with the exception of emergencies, a doctor’s detailed, written order would be required before physical or chemical restraints could be imposed, and then only when necessary for the physical safety of the residents. The federal law mandated that facilities must care for residents “in such a manner and in such an environment as will promote maintenance or enhancement of [their] quality of life. . . .”

The legislation was widely hailed as ushering in a new era of accountability for institutional caretakers. But individual residents and their families have frequently questioned whether administrative sanctions for violations of the law, such as civil fines or threats of defunding, are sufficient to protect residents.

In the Grammer case, the complaint alleged breach of the duty to ensure quality care under NHRA standards, citing the death of Melviteen Daniels from poor care that resulted in malnourishment, decubitus ulcers and sepsis, and alleging the cause of action under 42 U.S.C. § 1983.

The District Court in the Western District of Pennsylvania dismissed the complaint for damages, finding no cause of action existed at law.

The Third Circuit reversed in a 2 to 1 ruling. In the majority opinion, Circuit Judge Nygard gives a detailed explanation of how the NHRA should be recognized as unambiguously conferring federal, substantive rights on residents to quality care, rights that are enforceable under federal civil rights statutes.

The dissent notes that the NHRA was enacted as part of an Omnibus Budget bill, pointing to Supreme Court decisions that have rejected attempts to infer substantive rights from “Spending Clause” cases.

The Third Circuit's decision in Grammer opens new doors for recovery on behalf of older adults and disabled persons in public facilities, including the potential for attorneys' fees for successful civil rights claimants.

The outcome also suggests a new question, whether privately-owned nursing homes are also subject to a civil rights suit for violations of NHRA-mandated standards of care. Are private owners operating under color of state law when they are certified as Medicare and Medicaid qualified facilities and accept public dollars for their services? At a minimum, does the existence of a federal cause of action against public facilities strengthen the argument by resident-advocates that violation of federal standards constitutes "negligence
per se" for common law tort claims?

Another open question is whether mandatory arbitration provisions in nursing home admission agreements will be treated as limiting or barring courtroom litigation of federal civil rights claims.

Friday, July 17, 2009

Proposed New PA "Department of Aging and Long-Term Living"

A brief news item entitled "Bill would expand Aging department's oversight" by Scott Gilbert, posted on July 16, 2009, by WITF (Harrisburg, PA), noted the proposed restructuring of the Pennsylvania Office of Long Term Living (OLTL) into the Pennsylvania Department of Aging (DoA)

All long-term living facilities, for seniors and younger people alike, may soon fall under one state agency.

The departments of Aging and Public Welfare currently share oversight of the Office of Long-Term Living. But the House has approved and sent on to the Senate a measure that would create the Department of Aging and Long-Term Living.

Crystal Lowe, who heads the Pennsylvania Association of Area Agencies on Aging, says the move makes sense.

Among the functions that would be shifted out of DPW is the licensing and regulation of personal-care homes and assisted-living facilities. Lowe says her group supports the legislation, provided the merger would not diminish the Aging department's ability to advocate on issues unique to seniors.
The proposal was discussed at a meeting, held May 28, 2009, of the Medical Assistance Advisory Committee (MAAC) of the Pennsylvania Department of Public Welfare, when a resolution was adopted anticipating the organizational move of OLTL from DPW, to the DoA.
The Consumer Subcommittee made a motion that the Memorandum of Understanding formalize the role of the MAAC and the MAAC Subcommittees to continue to serve in an advisory capacity on the MA Programs that are moved to the Department of Aging and Long Term Living and that includes having someone come to the MAAC, not only to give reports, but to provide draft documents for comment and discussion for the MAAC to provide an advisory role independent of other committees.
It appears that the DoA anticipates receiving the prime role of addressing long-term care needs in Pennsylvania, as explored in its recent Summit held in State College.

A Press Release, entitled "
PA Department of Aging Explores Needs of Older Adults at Senior Center Summit" (06/30/09), noted an information-gathering process that focused on the role of the existing senior centers statewide.
The Pennsylvania Department of Aging and the Long-Term Living Training Institute have heard valuable insight from experts in the aging field and older adults during a two-day conference attended by over 300 professionals and consumers.

Pennsylvania has over 600 senior centers where older citizens go for support, camaraderie, meals and access to important information about programs that can help them.

“Senior centers offer a lifeline for many older residents who otherwise would be isolated,” said Department of Aging Secretary John Michael Hall. “Pennsylvania seeks to improve programs and access to centers across the state and to find innovative ways to make them more appealing, efficient and worthwhile for members.”

Discussion groups focused on the changing role of senior centers, fundraising techniques, creating a business plan and making the centers better places for older residents to go. Objectives of the meeting include improving ways to transport seniors to centers in rural and suburban areas and finding more and better ways to sustain operations in a cost-effective way.
The legislation that would accomplish the restructuring is PA House Bill 1152, presently in Printers No. 2212 (28 pages in PDF format), which is summarized simply as "An Act establishing the Department of Aging and Long-Term Living and providing for its powers and duties; and making related repeals."

According to its
Legislative History, HB 1152 was introduced on March 31, 2009, approved by the House on June 30th, and then was referred immediately, in the Senate, to its Aging & Youth Committee.

Very relevant to the discussion about regulation of personal care homes in Pennsylvania is Section 4's empowerment that, among other missions, the proposed, newly-named "Department of Aging and Long-Term Living" shall administer and supervise a domiciliary care program for adults.
More specifically, under Subsection 9.1, the new DA/LTL shall: "License and regulate personal care homes and assisted living residences under all powers previously granted to the Department of Public Welfare as provided in Articles II and X of the act of June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code."

The new
DA/LTL would also handle programs for Pennsylvanians who are older or who have disabilities. Section 4, in Subsection 10, provides that it shall "[a]dminister and supervise an attendant care program for people with disabilities under the act of December 10, 1986 (P.L.1477, No.150), known as the Attendant Care Services Act, and any related home and community-based services waiver for older adults and people with disabilities."

The legislation also projects a sweeping vision for long-term living in Pennsylvania.

Section 4, Subsection 12, provides that the new DA/LTL shall:

In cooperation with the area agencies, Federal, State and local agencies that support people with disabilities and older adults, service providers, centers for independent living and support organizations, work toward the development of a continuum of home and community-based service, transportation and housing options for older adults and for people with disabilities designed to maintain them in the community and avoid or delay institutional care when clinically appropriate.

The department shall ensure that consumers are made aware of the availability of nursing facility services or other residential settings when identified as a clinically appropriate option.

System development activities shall include coordinating the Commonwealth’s plans for the provision, expansion and effective administration of all of the following:
(i) In-home services that recognize consumer choice, including personal assistance and supportive services, which shall include consumer-directed services.

(ii) Housing options such as service-enriched housing options, personal care homes and assisted living residences and nursing facility services, when clinically appropriate.

(iii) Special services to caregivers who support people with disabilities and older adults, recognizing the important role that families play in helping older adults and people with disabilities to live independently.

(iv) Adult daily living center services, respite services and other community-based services to support caregivers.

(v) The promotion of informal community supports.

(vi) Comprehensive and ongoing assessment programs.

(vii) Counseling programs to assist individuals in determining appropriate long-term living services.

(viii) Special advocacy efforts to promote greater awareness of, and more effective response to, Alzheimer’s disease and other related dementia.

(ix) Activities and services at community senior centers.

(x) Wellness and preventive health programs.
Although this may appear initially as an organizational shuffle, I think that it represents more.

This is a potential restatement by the legislative and executive branches as to who, in state government, will work in a coordinated effort on issues of older and disabled Pennsylvania citizens far into the future.

Thursday, July 16, 2009

PA's "Filial Responsibility" Law in the News

Within the past few days, major media -- the Philadelphia Inquirer and ABC News -- published accounts about Pennsylvania's filial responsibility law, drawing attention to the desperation caused in some families in the Commonwealth who are compelled to support their parents' costly care needs despite their disconnection or their best efforts.

The Inquirer, from Philadelphia, published its article, "If mom can't pay, adult child must", by Monica Yant Kinne, on Sunday, July 12, 2009; and ABC News, from New York City, published its article, "Pay Your Parents' Bills or Else -- Little-Known State Laws Force Some to Pay Their Parents' Nursing Home Bills" by Alice Gomstyn, on Wednesday, July 15, 2009.

The Inquirer article told the story of Don Grant, of Havertown, Pennsylvania, who was sued for care costs incurred by his mother:

This one's going to blow baby boomers' minds. It concerns a little-known law dating to Elizabethan England suddenly being enforced with gusto in Pennsylvania. The law can force adult children to pay their parents' health-care costs. If Mom and Pop can't pay, you pay. If they have the money but refuse to pay, you pay.

If you don't, watch your credit rating sink under the weight of a legal judgment that will haunt you for life.

It happened to Don Grant. It can happen to you.

The Havertown man is nearly 50 and struggling to pay his mortgage and $100,000 in student loans incurred by his daughter, a recent Albright College grad.

Last year, Grant was sued because his mother, Diana Fichera, did not pay an $8,000 bill at a Delaware County nursing home, where she rehabilitated after surgery.* * *
Don Grant's mother was disassociated from him, and incurred substantial bills at care facilities. However, one care facility utilized Act 43 (recodified in Pennsylvania law in 2005), as a legal ground to sue him as her responsible family member.

The ABC News article told the story of Andrea August, of Norristown, Pennsylvania, who was also sued for care costs incurred for her mother:
Could you be sued for your parents' unpaid health care bills? It happened to Andrea August.

One spring day, the 39-year-old Pennsylvania woman was stunned to learn that a nursing home was suing her for more than $300,000 in unpaid bills related to her father, who died after spending about a year in the home, and her mother, a dementia patient still living there.

"I was devastated," August said. "We're living basically paycheck to paycheck. We don't try to live beyond our means -- it was just unbelievable that all of a sudden there was this debt hanging over us."

August said that both she and her husband work two jobs each to make ends meet for themselves and their two children. She loves her parents, she said, and did what she could to help them. But footing their bills was out of the question.
"I don't think anybody should be responsible for someone else's bill," she said. "You can only do so much."
August found herself among a growing number of adult children facing legal pressure to pay their parents' medical bills. * * *
Both articles deliver excellent reviews about the "filial support" concept, which derived from English law in the 1600s, was transported into Colonial laws, but fell into disfavor and disuse with the introduction of the federal Medicare and Medicaid systems in the mid-sixties.

Both articles note how the precarious financial situations of care facilities and the funding problems of the federal systems now lead providers to invoke those prior laws, particularly in Pennsylvania, due to the 2005 reenactment, which followed issuance of a Superior Court decision in Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super. 2003). 

Elder law attorneys have known about, and have opposed, the impact of Act 43 since its reenactment in 2005 into Pennsylvania's Domestic Relations Code, 23 Pa.C.S.A. § 4603 regarding "Relatives' liability" (unofficial form) and its supporting Regulations ("Actions for Support").

I noted the problems that a spotty enforcement of such a law could create for families, and provided further references. See: PA EE&F Law Blog post "Filial Support" in PA? Really?!? (07/28/08). See also: "Should you worry about your parents' debts?" by Liz Pulliam Weston, posted on MSN Money; and "Paying for Mom: Little-Known Laws Force Families to Fund Parents’ Care" (01/10/09) by Beth Baker posted by the AARP Bulletin.

My post quoted Professor Katherine C. Pearson, who is the Director of the Elder and Consumer Protection Clinic, of Penn State - Dickinson School of Law, and who now is Chair of the Elder Law Section of the Pennsylvania Bar Association.

She was quoted in both the Inquirer and ABC News articles, too.  

These articles appear just as federal health care insurance proposals air nationally. Such reform should take in account remaining state filial responsibility laws, and address, at minimum, the procedural rights that should be afforded to those being charged with care costs of family members.

However, until the situation of "filial support" is clarified -- particularly in Pennsylvania -- anyone receiving an Act 43 demand from a care facility regarding costs incurred by a family member must be vigilant. Never brush off such a demand, or else you run the risk of becoming the star of another article about filial support.

Graphic Source: AARP Bulletin

Update: 2012-06-11:

See PA EE&F Law Blog posting Filial Support of Indigent Parents in PA (06/11/2012) regarding a recent Superior Court decision that addressed the filial support statute in Pennsylvania.

Tuesday, July 14, 2009

"Growing Old in America" Report by Pew

On July 7, 2009, the SmartTalk radio discussion program, offered by Public Broadcasting System affiliate WITF-FM (Harrisburg, PA), presented the topic "The New Generation Gap" with guest Kim Parker, a Senior Researcher at Pew Social & Demographic Trends, of the Pew Research Center.

The generation gap. It sounds like a relic of the 1960s when young Americans rebelled against the traditions and lifestyles of their parents and anyone older than 30.

Since then, much has changed. Today, children are closer to and more open with their parents. But what has emerged recently though is a divide in attitudes, especially toward social issues, between the generations.

A recent study by the Pew Research Center finds a new generation gap when it comes to issues like gay marriage. What are the issues younger and older people differ on the most? * * *
The basis for the program was a report issued June 29, 2009, by the Pew Research Center, entitled "Growing Old in America: Expectations vs. Reality" regarding its research conducted between February 23 and March 23, 2009, through focus groups convened in Baltimore, Maryland.

This is the "executive summary":

Getting old isn't nearly as bad as people think it will be. Nor is it quite as good.

On aspects of everyday life ranging from mental acuity to physical dexterity to sexual activity to financial security, a new Pew Research Center Social & Demographic Trends survey on aging among a nationally representative sample of 2,969 adults finds a sizable gap between the expectations that young and middle-aged adults have about old age and the actual experiences reported by older Americans themselves. * * *
AARP noted the study in its posting of an Associated Press article entitled "Study: Generation gap in US largest since 1960s" by Hope Yen (06/29/09). The article contrasted views of younger versus older people, as revealed in the Report, on such key beliefs as morality, religion, and politics:

Almost eight in 10 people believe there is a major difference in the point of view of younger people and older people today, according to the independent public opinion research group. That is the highest spread since 1969, when about 74 percent reported major differences in an era of generational conflicts over the Vietnam War and civil and women's rights. In contrast, just 60 percent in 1979 saw a generation gap.

Asked to identify where older and younger people differ most, 47 percent said social values and morality. People age 18 to 29 were more likely to report disagreements over lifestyle, views on family, relationships and dating, while older people cited differences in a sense of entitlement. Those in the middle-age groups also often pointed to a difference in manners.

Religion is a far bigger part of the lives of older adults. About two-thirds of people 65 and older said religion is very important to them, compared with just over half of those 30 to 49 and 44 percent of people 18 to 29. * * *
As to the characteristics of the newest "generation gap," it was noted by Paul Taylor, Director of the Pew Social and Demographic Trends Project, that "[t]oday, it's more of a general outlook, a different point of view, a general set of moral values."

For prior surveys and reports by the Pew organization on the topics of demographics and population aging, see: "Reports on Generations."

The guest on the recent
SmartTalk program, Senior Researcher Kim Parker, led the full Social & Demographic Trends staff in preparing the survey questionnaire and then in analyzing the findings. She also wrote Sections I, II and III of the Report. So she was a knowledgeable guest -- and a good speaker, too.

Wisconsin Public Radio had featured Kim Parker in an earlier discussion program about the same topic, broadcast on July 2, 2009; but to listen now, you must be a member.

Graciously, WITF-FM made its thought-provoking, one-hour, July 7th audio broadcast available free for the clicking on its website, here.

"There was no respect for youth when I was young,
and now that I am old, there is no respect for age --
I missed it coming and going."

~J.B. Priestly
English novelist, playwright and broadcaster (1894-1984)

per QuoteGarden)

Monday, July 13, 2009

July 24th Deadline for Assisted Living Regs

The Pennsylvania Assisted Living Consumer Alliance (PALCA) recently updated its website to explain recent developments in proposed assisted living licensure requirements for Pennsylvania, and to announce a July 24, 2009 deadline established by the Pennsylvania Department of Public Welfare, Office of Long-Term Living (DPW) to receive additional comments on proposed regulations.

The Pennsylvania Assisted Living Consumer Alliance (PALCA) is a collaboration of consumers, family members, and local and statewide organizations that have united to advocate for safety, freedom of choice and high legal standards for residents in assisted living facilities in the state. * * *

PALCA is advocating for the establishment of standards that define and regulate assisted living facilities – in particular those relating to questions of residents’ rights, staff qualifications, training and resident ration requirements, physical site design, fire and safety codes, aging in place considerations, consumer choice, control, autonomy and an enforcement system.

Additionally, at present, there are no national standards or consistent definition or regulation for assisted living, nor any clear best practice standards. * * *
Thirty-two organizations are listed on PALCA's web page entitled "Participating Organizations", including the Pennsylvania Bar Association's Elder Law Section. Assisted living facilities presently are governed by existing regulations regarding "Personal Care Homes".

Proposed regulations under a new law (Act 56 of 2007) have been carefully reviewed by
PALCA, as explained on its web page entitled "Proposed Regulations."

I have noted
PALCA's interest and input previously on this Blog. See: PA EE&F Law Blog posting "New PALCA for Assisted Living Standards" (07/22/08). For background about Act 56 of 2007, and the environment of its enactment, see: PA EE&F Law Blog postings, "PA's Act No. 56 on Assisted Living Facilities" (07/26/07), and "PA's "Assisted Living Facility" Bill (likely, Law)" (07/16/07).

PALCA issued an "Urgent Regulations Update" on its web page and in email to constituent organizations, urging further input by those interested no later than the July 24, 2009 deadline established by the DPW. I quote from its web page:
On June 24, the Office of Long Term Living released the interim draft Assisted Living Regulations to stakeholders and interested persons. This draft is available here: Document-12700.pdf. This is just an interim draft and the state is accepting comments on last changes to make prior to publishing their final draft in the months ahead.

We have reviewed it along side the proposed regulations. There are many good changes. These are listed here: Click here to download the PDF document (Interim Regulations Good list)

However, there are still some major outstanding issues that need to be resolved so that consumers can be well-served in Pennsylvania’s assisted living facilities. These are listed here: Click here to download the PDF document (Interim Regulations Bad list)

Comments may be submitted to the Office of Long Term Living via e-mail at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

or via mail at:

Office of Long Term Living
Bureau of Policy and Strategic Planning
P.O. Box 2675
Harrisburg, PA 17105
Attention: Bill White

Comments must be submitted by close of business on Friday July 24, 2009. Additionally, the state is asking for comments to be submitted in a Microsoft Word document and prefers to receive them by e-mail.

We strongly encourage folks to submit their support for the good things that have been done and their opinion that more needs to be done to make these regulations good enough for the people we love.

The Interim Regulations include several significant improvements over the proposed regulations. This considerably improves the regulatory package and we are very pleased with these additions.

Those interested in making comments might be advised, also, to read a report, dated March 27, 2009 (updated on DPW's website on July 9, 2009), entitled "Adult Residential Licensing: 2008 Annual Report: A Report on Licensed Personal Care Homes" (PDF, 24 pages).

Friday, July 10, 2009

New PA Judicial Center Open for Occupancy

The newly-constructed Pennsylvania Judicial Center, located in the Capitol complex in Harrisburg, finally is receiving its new occupants.

According to a news report entitled "Judicial Center in Harrisburg built to last a lifetime" by Jan Murphy, published in The Patriot-News on December 27, 2008, the PJC was expected to be completed by April, 2009, after nearly three years in construction.

Construction began in 2006 on the 425,000-square-foot complex. It connects a five-story building at the west end that houses courtrooms and judges' chambers, with a nine-story office structure on the east.

The 15 employees who work for the judicial conduct board are expected to be the first to move into the building in June. Others will take up occupancy over the subsequent three months, he said. The Commonwealth Court will hold its first sessions there in September.

The center is built to accommodate more than 500 employees. It will bring together staff that are spread over a dozen locations in and outside the Capitol complex.
I watched weekly over the past few years as the PJC grew from skeleton to shell to shelter to shrine. I noted its construction progress twice in prior blog postings. See: PA EE&F Law Blog postings "PA Judicial Center Under Construction" (10/31/08) and "New PA Judicial Center Under Construction" (05/09/07).

A month ago, I saw its interior lights lit during business hours, and, while walking by, I peeked inside.
For two views of its interior, see pictures of its lobby and courtroom posted by a contractor, McClure Company. For views of its exterior, see the PJC web page of the Pennsylvania Department of General Services.

Since mid-June, the PJC has been receiving occupants in staged moves. Today, I received notice that "the Commonwealth Court of Pennsylvania will move to the Pennsylvania Judicial Center" effective August 3, 2009. "Filings should be directed to the Court's new address" after that date, at its new address, 601 Commonwealth Avenue.

The moving schedule for court offices, boards, and agencies was posted on the web in a list of Pennsylvania Judicial Center Occupants (PDF, 2 pages), which listed the occupant, main office telephone, relocation date/timeframe, and new mailing address:
Continuing Legal Education Board
Thursday, June 11 - Friday, June 12
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 3400
PO Box 62495
Harrisburg, PA 17106-2495

Court of Judicial Discipline
Tuesday, June 16
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 5500
PO Box 62595
Harrisburg, PA 17106-2595

Client Security
Thursday, July 9
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 5400
PO Box 62585
Harrisburg, PA 17106-2585

Administrative Office of Pennsylvania Courts
Thursday, July 9 - Friday, July 10
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 1500
PO Box 61260
Harrisburg, PA 17106-1260

Commonwealth Court of Pennsylvania
Monday, July 20 - Friday, August 14
Pennsylvania Judicial Center
601 Commonwealth Ave.
Harrisburg, PA 17120-0901

Board of Law Examiners
Tuesday, September 15 - Wednesday, September 16
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 3600
PO Box 62535
Harrisburg, PA 17106-2535
Thrilled as I am, as a lawyer and local resident, about such a consolidation of court functions in a new, state-of-the-art building in the Capitol City, there is one aspect of sadness regarding the center's opening.

In October, 2003, when Governor Edward Rendell considered releasing funds for construction of the PJC, his action was urged by the vision of the new Supreme Court Chief Justice, Ralph J. Cappy, who had advocated, among others, for such a center. See: "Pennsylvania's newest Chief Justice to take on modernization of state courts" by Marylynne Pitz, published October 05, 2003, by the Pittsburgh Post-Gazette.
Consolidating the state courts' functions could happen if Gov. Ed Rendell releases the funds that would pay for the design and construction of a $123 million judicial center in Harrisburg. The money was set aside in the 2001-2002 budget. The state judicial center would have about 400,000 square feet and house about 400 employees. Vitteta, a Philadelphia-based architectural firm, was chosen for the project in January by the state Department of General Services.

The state judicial center would consolidate numerous court offices spread out over the state, allowing for the termination of office leases. * * *
Sadly, after retiring from the Pennsylvania Supreme Court in January, 2008, Ralph J. Cappy died unexpectedly at his Green Tree home on May 1, 2009 at age 65. See: "Ralph J. Cappy, Former Pennsylvania Supreme Court Chief Justice, dies at 65" (05/09), posted by; "Retired Supreme Court Justice Cappy dead at 65" (05/02/09) published by the Pittsburgh Tribune-Review; and "Obituary: Ralph J. Cappy / Retired Pennsylvania chief justice" (05/03/09) published by the Pittsburgh Post-Gazette.

He died one month before the new state occupants began arriving in the PJC.

When I enter that building sometime in the future, I will look for his name to be listed, among others, on a plaque prominently displayed in its foyer, as a testament to their vision.

Thursday, July 09, 2009

"Creativity" in Elder Law Promoted

The Elder Law & Consumer Protection Clinic at Penn State/Dickinson Law School issued the Summer, 2009 issue of its newsletter, Adventures in Law and Aging (PDF, 4 pages), with the theme of "creativity" in addressing elder law issues in Pennsylvania.

This is the Table of Contents of the Summer 2009 Newsletter:

  • GUARDIANSHIP REFORM: The Need for Creative Approaches to Fiduciary Support, by Professor Katherine C. Pearson, Director, Elder Law & Consumer Protection Clinic (p. 1)
  • ALUMNI SPOTLIGHT: CREATIVITY IN PRACTICE: The Blogging Attorney, by Brian W. Mains, Certified Legal Intern (p. 1)
  • CREATIVE SOLUTIONS: Designing a Progressive and Innovative Older Adult Transportation Alternative, by Tatyana Chigirinsky, Certified Legal Intern (p. 2)
  • A NEW CLINICAL EXPERIENCE: AARP’S Legal Services, by Abby Warren & Christina Bonne-Anne, Certified Legal Interns (p. 3)
  • Hot Summer Events in Law & Aging (p. 4)
The second article is about blogging by a lawyer -- specifically about this PA Elder, Estate & Fiduciary Law Blog and its Dickinson School of Law (Class of 1976!) alumni blog author (me).

I had talked on the telephone for over an hour with third-year law student Brian Mains, in March, 2009, but heard little until Katherine Pearson sent an email with a PDF of the newsletter containing his published article.

Brian translated and organized my comments well. He captured the spirit of what I tried to convey to him, just as I try to convey it to students in my elder law classes: The practice of elder law requires passion and compassion, as well as solid legal skills, advocacy, and creativity.

But the article, which focused on this Blog, also jolted me. Lately I have not written postings as I should, despite so many developments affecting the senior population.

So, I'll stoke up my passion again, and post more. 'Nuff said.

Thursday, July 02, 2009

Proposed DPW Lien Expansion Opposed

Since April, 2009, Pennsylvania lawyers carefully followed proposed state legislation (House Bill 1351) that would significantly expand Medicaid recovery beyond the current target -- a recipient's estate after death -- to more targets in which a recipient has a limited or partial lifetime interest. The effects on such other, remote interests in property would be far reaching.

Recently, Jeffrey A. Marshall, Esq. (a practicing member of Marshall, Parker & Associates, LLC), as a member of the Council of the Elder Law Section of the Pennsylvania Bar Association, circulated an email message on the Elder Law Listserv that updated fellow members about the status of bar association efforts in opposition to the proposed legislation.

Opposition, spearheaded by the Elder Law Section, was joined by the Real Property, Probate & Trust Law Section, the Family Law Section, and the Solo & Small Firm Practice Section of the PBA.

With his consent, I repost his report (with slight editing and links added), with thanks.

Section Chair, Katherine Pearson, has asked me to update members on the Elder Law Section efforts in regard to the proposed expansion of estate recovery.

In April, HB 1351 was introduced as part of the Governor’s Budget proposal. The bill contains a rewrite of Section 1412 of the Welfare Code that will expand Medicaid estate recovery in Pennsylvania to include interests held in joint tenancy, tenancy by the entireties, survivorship, life estate, living trust or other arrangements.

The bill also gives the Department of Public Welfare (DPW) unprecedented collection authority and the power to resolve claims in an autocratic manner which is inconsistent with probate, trust and estate law.

The Elder Law Section moved immediately and forcefully to oppose the expansion of estate recovery. Our actions included:
  1. Submission of a resolution to the PBA Board of Governors and House of Delegates opposing the expansion of estate recovery. Section leaders coordinated this opposition with other PBA groups including the Solo & Small Firm Practice, Family Law, and Real Property, Probate & Trust Law Sections. The resolution was approved by the House of Delegates on June 4th and is now PBA policy.
  2. Section leadership has been working with the PBA Legislative Department to advocate in the state legislature. Letters have been sent by PBA to legislators and the Governor. A PBA Legislative Alert will be coming out soon that will provide the Association’s members with an easy way to contact their legislators to express their concerns. It is vital that legislators hear from their local constituents, especially from the lawyers in their districts who understand the negative impacts of the recovery expansion.
  3. The Section has coordinated our efforts with other non-PBA lawyer groups including the Pennsylvania Association of Elder Law Attorneys (PAELA) and the Section has coordinated our efforts with other non-PBA lawyer groups including the Philadelphia Bar Association.
  4. The Section, in coordination with PAELA, developed materials to inform and advise other affected groups about the proposed expansion. Members then contacted those groups to seek support and build an effective coalition of opponents of the proposal. Section members spent countless hours alerting these other organizations to the effects of the proposal. Our efforts have been remarkably successful and our coalition now includes the following diverse group of organizations: AARP Pennsylvania Chapter; Insurance Federation of Pennsylvania; Pennsylvania Bankers Association; Pennsylvania Land Title Association; Pennsylvania Alzheimer’s Public Policy Coalition; Pennsylvania Home Care Association; Philadelphia Bar Association; PAELA; and many others.
  5. PAELA has developed talking points, a position statement, and sample templates for lawyers to use for letters to be mailed to their legislators.
  6. Many individual members of the Section have already contacted their legislators to alert them to the dangers of expansion of recovery. They have received many positive responses from the legislators.
We have learned that Section 1412 is not the only legislative proposal to expand estate recovery. House Bill 68, while less extreme, also seeks to expand recovery collections by means that will create problems for our clients, as well as for banks and funeral directors.

In a frightening example of how things can slip through unless our section is constantly on alert, HB 68 has already passed the House by unanimous vote. It is now under consideration by the Senate Judiciary Committee.

Much has been accomplished by your Section to defeat the expansion of estate recovery, but much more needs to be done. Please contact your state legislators, in person, by mail, and/or by e-mail. Your support and assistance is greatly appreciated.
The PAELA "talking points" are posted online here (PDF, 2 pages).

This is the position of the PBA in its Legislative Alert, sent June 22, 2009:
The Pennsylvania Bar Association adamantly opposes this section of HB 1351 and any similar legislation being negotiated as part of the 2009-10 state budget as bad public policy and harmful to the Commonwealth’s already vulnerable senior citizen population.

The issues contained in HB 1351 will undoubtedly play a role in the 2009-10 state budget negotiations in the legislature. Any attempt to expand MAER will:
· Create significant complications for estate administration and cause major title and conveyancing problems.
· Deter individuals from serving as executors and trustees and lawyers from representing these fiduciaries.
· Discourage older Pennsylvanians from seeking needed long-term care support services out of fear of new liens asserted by the Commonwealth. * * *
The PBA urges its members to contact legislators: "A]sk them to oppose section 1412 of HB 1351 and any similar attempts to expand estate recovery."