HUMAN RIGHTS MAGAZINE

Gray Areas of the Law: Evolving Issues in Elder Law

By Jan Allen May

The skyrocketing growth in the number of people sixty-five and older in the United States has propelled significant changes and some improvements in areas of law important to the lives of older people. The demographics of an aging population have spurred attorneys to work with other professionals to improve the quality of life available to older Americans. This process has been fueled significantly by the advocacy efforts of organizations like the AARP; the network of legal services advocates funded by Title III of the Older Americans Act, 42 U.S.C. § 3001 (2003) et seq.; and the formation, growth, and activities of organizations such as the National Academy of Elder Law Attorneys, www.naela.org. As the baby boomers approach retirement, this trend will move at a much faster rate.

The law has grown and developed most dramatically in areas affecting the basic needs of older people— income, housing, consumer issues, and health and protective arrangements (such as powers of attorney and guardianship). Although social security was never intended to be the sole or main source of income during retirement, it is—along with other public benefit programs such as Supplemental Security Income (SSI) benefits, veterans’ benefits, and railroad retirement—the economic mainstay for millions of older households across America. See, e.g., Thomas Hungerford et al., Trends in the Economic Status of the Elderly, 1976–2000, SOC. SEC. BULL. Sept. 22, 2002, at 12. The threat of loss or diminution of this income poses a real danger to a significant segment of the older population.

Financial Matters

It is no surprise then that the early days of what is now known as elder law concentrated in significant part on establishing clear due process rights—that is, notice and opportunity to be heard—in cases before the Social Security Administration and other agencies that were terminating or reducing benefits because of alleged wrongful payments, overpayments, or other harmful administrative actions. See, e.g., Califano v. Yamasaki, 442 U.S. 682 (1979). Other lawsuits challenged eligibility requirements that unfairly discriminated against classes of people such as widows or children, and often resulted in changes in the law.

Seniors now are more knowledgeable about their basic rights relating to social security and similar benefits, particularly those to contest adverse decisions, request waivers for overpayments, contest findings of nondisability, or amend a work record to properly reflect an individual’s participation in the system, due, in significant part, to the active role of the AARP Foundation’s National Training Project and others. In recent years, educational efforts have tended to focus significantly on outreach and raising participation rates in need-based programs (e.g., SSI, Medicaid, and food stamps), especially among non-English speakers, shut-ins, Native Americans, and those with limited or no education who can benefit most but who generally participate least.

Income from private pensions is another leg of the economic stool upon which older Americans rely. The horror stories of workers who lost their pensions after working for many years at the same company gave rise in 1974 to the Employee Retirement Income Security Act (ERISA), which has done a good job of protecting pensions (although underfunding continues to be a problem). Although ERISA was originally enacted primarily to protect pensions, recent litigation has focused more on protecting benefits such as health and disability insurance, see, e.g., Lynd v. Reliance Standard Life Ins. Co., 94 F.3d 979 (5th Cir. 1996). Such protections have been woefully deficient, especially in health benefits. ERISA has also dealt inadequately with the new realities of the marketplace such as the proliferation of 401(k) plans, mergers and acquisitions, lack of portability in defined benefit plans, and conversion of defined benefit plans to hybrid plans. See, e.g., Tittle v. Enron Corp., 284 F. Supp. 2d 511 (2003). Although proposals have been offered to deal with some of these issues, comprehensive federal legislation may be needed to adequately address the new world of retirement benefits in the private sector.

Employment and Housing Issues

Older workers forced into retirement raise the specter of age discrimination. The Age Discrimination in Employment Act (ADEA) was passed in 1967 and was intended to protect workers aged forty and older. 29 U.S.C. §§ 621-634 (2003). Since its enactment, the most blatant forms of workplace age discrimination, such as mandatory retirement age and termination or failure to hire for manifestly ageist reasons (“Jones, you’re too damn old to do the job.”), have all but disappeared. See Robert J. Grossman, Are You Ignoring Older Workers? HR MAG., Aug. 1, 2003, at 40. This has been accompanied, however, by an increase in more subtle forms of age discrimination like layoffs that cause more relatively older workers than younger employees to lose their jobs. Is this outcome the result of chance, or was the plan designed to disguise the employer’s plan for a younger—and cheaper—workforce to appeal to younger consumers? The number of age discrimination charges filed annually with the Equal Employment Opportunity Commission increased each year from 1968 through the early 1990s, then began to drop, indicating the problem was on its way to resolution. Recent increases in the number of charge filings, however, indicate that age discrimination will likely continue, especially in tough economic times when older, higherpaid employees are the first to be sacrificed to the company bottom line. See ADEA Charges FY1992–FY2002, (Nov. 14, 2003), www.eeoc.gov/stats/adea.html. Given the skeptical attitude of the nation’s courts to age discrimination claims, see, e.g., Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993), older workers will continue to experience difficulty for the foreseeable future.

Closely related to advocacy concerning income are the advocacy efforts for older people in housing. In years past, housing with few exceptions offered shelter but little else. Seniors lived on their own, with family, or, if no longer able to care for themselves, in board and care homes or nursing homes. During the past two decades, the emphasis on autonomy and aging in place and the desire for noninstitutional settings have developed a variety of housing options:

• Retirement communities for active seniors;
• Continuing care retirement communities (CCRCs) offering a continuum from independent living to assisted living through nursing home care;
• Assisted living options offering a range of meal plans, services, supervision, and healthcare, depending on facility and location;
• Federally subsidized rental housing with service coordination and/or congregate meals for low- and moderate- income seniors;
• Board and care, a housing option utilized most by low-income persons;
• Naturally occurring retirement communities (NORCs), where support services are integrated within the community for residents who have aged in place; and
• Colocated housing that shares a common site with another program or facility, giving residents the convenience of nearby services.

By far the most popular and most discussed option today is assisted living. Getting a handle on the rights of assisted living residents is no easy task. Each state has its own definition, its own guidelines for resident eligibility and services, and its own system of regulation. In most states, oversight of assisted living is minimal; in some states it is nonexistent. Stephanie Edelstein, Assisted Living: Recent Developments and Issues for Older Consumers, 9 STAN. L. & POL’Y REV. 373 (1998). Seniors exploring this option must be careful consumers and check the following points before they move in: what will be provided and at what cost; what rights will they have in the event they disagree with a provider’s decision; and will that particular facility meet their needs both now and in the future.

The potential for abuse and neglect in senior facilities abounds, particularly in those that cater to a frail population and are unlicensed or unregulated. Advocacy challenges in this area include securing sufficient financing to increase the supply of suitable homes and foster competition; establishing standards for the facilities and rights for the residents; and ensuring that state and local governments enforce such standards and rights once they are established. An emerging issue is balancing individual self-determination against the need to protect elders who are physically vulnerable and/or have diminished decision-making capacity.

Given the increase in aging populations and longer life expectancies, effective advocacy of nursing homes becomes all the more critical. Nationally mandated Long-Term Care Ombudsman programs in each state have played an integral role in monitoring the quality of care in nursing homes. 42 U.S.C. § 3058g. Although typically greatly understaffed and underfunded, these programs have the responsibility of investigating complaints about the quality of care in nursing homes and assisted living and board and care homes, and the challenge of working toward systemic reform. Related emerging law gives nursing home residents the right to make choices about services, to maintain privacy, and to contest facility decisions including discharges or transfers. 42 C.F.R. § 483.12 (2003). Virtually every state has adopted a variation of this legislation. Efforts to improve the quality of care also have attempted to mandate minimum staff-to-resident ratios. See, e.g., H.R. 2684, 1998 Reg. Sess. (Minn. 1998); H.R. 7805 (R.I. 1998). This issue is crucial for increasing numbers of critically ill residents housed in these institutions. Unfortunately, the size and power of the nursing home industry often makes advocacy efforts appear akin to David facing Goliath, although national and governmental attention highlight the problem of quality of care. E.g., Robert Pear, Nursing Home Report Card Is Released by Government, N. Y. TIMES, Nov. 12, 2002, at A20; www.medicare.gov (click “Nursing Homes Compare”).

Healthcare Concerns

The Medicare and Medicaid programs generally take center stage in healthcare. Regrettably, many of the health needs of older people are precisely the ones not covered by Medicare—eyeglasses, dental work, nondurable medical equipment, and extended nursing home coverage. Historically, Medicare has also not covered prescription drugs but will partially cover them in 2004 and beyond. Medicare Prescription Drug Improvement in Modernization Act of 2003, Pub. L. No. 108-173, 117 § 2066. Litigation in the area of Medicare has tended to push the envelope concerning home health coverage and skilled nursing facility coverage. See, e.g., Lutwin v. Thompson, No. 01-6269 (2d Cir., Feb. 26, 2004). Additionally, multiple efforts are afoot in state legislatures regarding coverage for prescription drugs for individuals whose incomes are too high for Medicaid. See National Conference of State Legislatures, State Pharmaceutical Assistance Programs (2003), www.ncsl.org/programs/ health/drugaid.htm. Legal activity in Medicaid is focused primarily on “spending down” assets, typically to solve the problem of “spousal impoverishment.” Here, the spouse of a nursing home resident receives help in order to qualify for Medicaid and ensure he or she has sufficient income and assets while still living in the community. We also continue to address discrimination against Medicaid recipients by healthcare and long-term care facilities.

The increase in the number of very elderly persons has appropriately increased interest and attention in law concerning diminished capacity. Many state statutes were enacted when the word “old” presumed incompetence. Advances in science and the ability to refine diagnoses have led to laws regarding protective arrangements that meet individual needs, so that wholesale removal of individual rights is no longer common. See, e.g., D.C. Code § 21-2001 (2003). Additionally, state laws now allow the creation of durable powers of attorney so that individuals can appoint those who will be responsible for financial, healthcare, and life decisions should the senior become unable to do so. As with public benefits, one challenge for advocates is to ensure that as many people as possible execute such documents, to maximize self-determination and avoid later expense, disruption, and court-appointed guardians or conservators.

Consumer Protection Matters

Wherever there are people with diminished capacity and increased vulnerabilities, the potential for scam and abuse exists, particularly in the area of consumer law. Specific swindles include telemarketing ploys; home repair offers; living trust opportunities; deceptive sweepstakes; deceptive funeral and burial practices; unconscionable loans by finance companies; and, perhaps most virulently, predatory lending. In 2001 AARP mounted a successful national campaign against telemarketing fraud that included a toll-free number for consumers, lobbying efforts within state legislatures, and filing amicus briefs in several cases. Although laws in many states are proconsumer, they are only as effective as the people who enforce them.

The area of predatory lending remains an area where older people are disproportionately victimized. “Granny hunting,” to use the industry term of art, targets older people in low- and moderate-income neighborhoods who have large amounts of equity in their homes. See, e.g., Steele v. Bronstein, No. 1:98-cv-01940-RMU (1998). The typical predator/salesperson convinces the homeowner to take out a home equity loan—one with many additional charges and a high rate of interest. This “bad” loan is often bundled and sold to financial institutions and/or to mainline banking institutions. AARP and others have mounted a serious campaign including consumer education, litigation, and advocacy efforts, aimed especially at the state level, to curb these lending practices.

The topic of multidisciplinary practice in areas of elder advocacy has taken an interesting and promising turn. Clients with multiple problems, especially those on the lower end of the economic scale, pose a challenge to attorneys. Various initiatives have been undertaken by AARP’s Legal Counsel for the Elderly and other organizations to design holistic methods of delivery of legal services. Here, attorneys can work with social services agencies as part of a multidisciplinary panel, examining the array of problems a client faces and assigning them to those on the panel, be they social workers, lawyers, or medical personnel. Such a multidisciplinary approach gets at the root causes of the client’s situation rather than simply segmenting it by type. A legal problem (threat of eviction, for example) may occur again and again because the underlying problem (loss of income or employment, abuse, family issues, etc.) remains unaddressed. The group approach facilitates full exploration of an individual’s needs. These initiatives hold promise to achieve lasting benefits for this particularly vulnerable group of multiproblem clients. See AARP Legal Counsel for the Elderly, “How to” manuals on a variety of topics (2003), www.aarp.org/lce.

Stats: Demographics
• Number of elderly in 2000: 35 million
• Percentage increase this figure represents from 1990: 12%
• Number of elderly projected in 2030: 70 million
• Number of people turning 65 in 2000: more than 2 million (5,574 per day)
• Percentage of total elder population residing in Florida in 2000: 17.6% Sources: Admin. on Aging, www.aoa.gov; Census Bureau, 2001 and 2002 reports; Census Bureau, http://factfinder.census.gov

Resources on Consumer Protection for the Elderly
• JOHN MCHARDY, DON’T PAY FOR A PROMISE: A SURVIVOR’S GUIDE TO SWINDLES AND DECEPTIVE PRACTICES (1st ed. 2000).
• DOUGLAS P. SHADEL & JOHN T. (ANON.), SCHEMES & SCAMS: A PRACTICAL GUIDE FOR OUTWITTING TODAY’S CON ARTIST FOR THE 50+ GENERATION (1994).
• Ralph Bender, Disrespecting Our Elders, REGISTERED REPRESENTATIVE, Oct. 2000.
• Nat’l Consumer L. Ctr., Consumer Concerns for Older Americans (Nov. 14, 2003), at www.consumerlaw.org/initiatives/seniors_initiative/concerns_telemarket.shtml.

Jan Allen May is currently the director of AARP Legal Counsel for the Elderly. He has been involved in the field of elder law for the past twenty-six years. He gratefully acknowledges the assistance of the following in preparing this article: Mary Ellen Signorille and Tom Osborne of AARP Foundation Litigation; Stephanie Edelstein of the ABA Commission on Law and Aging; and Kimberly Jones, a law student at Georgetown University Law School.