September 27, 2018

Policy

Making a Difference

Introduction

The ABA Commission on Law and Aging exercises leadership in the areas of law and policy for older persons and advocates for them within the ABA and the larger community. 

Here is a list of policies that the ABA has adopted as a result of the Commission on Law and Aging's advocacy for older persons:
(Note: linked documents will either download or open in a new window, either as a Word or a PDF file.)

ADVANCE CARE/MEDICAL DECISION-MAKING/POLST

Advance Care, February 2015, 100
Urges federal, state, local, territorial, and tribal governments to enact legislation and regulation that will promote six enumerated components in the provision of care to persons with advanced illness.

Medical Decision-Making, August 2012, 106A
Amendments to the Patient Self Determination Act, calling for strengthening advance care planning rights and procedures for health care decisions.

POLST, August 2008, 103
Urges federal, state, tribal, and territorial legislative bodies, governmental agencies, and health care providers to establish and support decision-making protocols to ensure that the wishes, including those expressed in any prior advance directive, of those who have advanced chronic progressive illnesses are appropriately translated into visible and portable medical orders such as “Physicians Orders for Life-Sustaining Treatment” or “POLST,” that address higher probability medical contingencies, including hospitalization, cardiopulmonary resuscitation, artificial nutrition and hydration, antibiotics, and ventilation.

Health Care Decision-Making, February 1990, 108A
Supports the principle that individuals who are capable of making health care decisions generally have the right to consent to and to refuse suggested health care interventions, even if the result would be to shorten life's span.

Health Care Decision-Making, August 1989, 120
Encourages the use and recognition of durable powers of attorney for delegating health care decision making authority in the event of decisional incapacity of the principal.

ASSISTED LIVING

Assisted Living, August 2001, 102
Supports uniform and comprehensive state and territorial standards, regulation, and oversight of facilities and programs, commonly referred to as "assisted living," offering to persons in a residential setting some degree of supervision or assistance with personal services and health care, sufficient to enable consumers to make informed choices about their care options; provide resident rights and legal protections; and ensure resident safely and appropriate, high quality care. Opposes state, territorial, or federal agencies granting "deemed status" (the recognition of private accreditation as meeting government regulatory standards) to assisted living programs or providers accredited by private organizations unless certain conditions are met. Supports initiatives to increase the availability of affordable assisted living options and access to those options by persons of low and moderate means.

DISABILITY

Voting and Cognitive Impairment, August 2007, 121
Urges federal, state, local, and territorial governments to: (1) Improve the administration of elections through four enumerated strategies, including the use of mobile polling stations; (2) Ensure retention of the legal right to vote in the event of disability unless four enumerated judicial criteria are met; (3) Expand the availability of absentee or “vote at home” balloting; (4) Improve access to voting by residents of long-term care facilities through three enumerated strategies; (5) Require and fund the development of universal design in voting systems so that persons with any impairment, including physical, sensory, cognitive, intellectual, or mental, can vote privately, independently, and with ease; (6) Recruit and train election workers to address the needs of voters with disabilities.

Protection and Advocacy System, August 2010, 106A
Urges Congress to reauthorize the Protection and Advocacy System and related programs of legally based advocacy services protecting the rights of persons with disabilities in the states and territories.

Opposes legislation that includes more restrictive requirements for class actions on behalf of individuals with disabilities seeking relief through the Protection and Advocacy System than class action requirements under the Federal Rules of Civil Procedure.

Urges Congress to provide adequate funding for the Protection and Advocacy System and related programs, and to preserve its authority to protect, represent, and fully investigate on behalf of persons with disabilities in institutions, facilities and the community.

ELDER ABUSE

Court Focused Elder Abuse Initiatives
August 2012, 106C

Urging establishment of court-focused elder abuse initiatives following enumerated principles. 

Elder Abuse Prosecutions (with Criminal Justice Section), February 2008, 105A
Calls for federal, state, local, tribal and territorial governments and their prosecutors to vigorously prosecute cases of elder abuse, neglect, and financial exploitation by the creation of special elder abuse units within the prosecutor's office or by the designation of a specially trained prosecutor to handle elder abuse cases and by ensuring that the victim assistance/services program within the staffing structure of their offices develop policies, procedures and funding for providing specialized victim services to the elder population due to the unique needs of elder abuse victims and the many types of abuse inflicted on them.

Elder Abuse, August 2002, 108A
Expresses the Association's support for efforts to improve the response of the federal, state, territorial and local governments and of the criminal and civil justice systems to elder abuse, neglect and exploitation. It also expresses its support for implementation by the federal, state, territorial and local governments of eight actions derived from law-related recommendations developed at the National Policy Summit on Elder Abuse, held in December 2001. Like existing Association policy in the areas of child abuse and domestic violence, the recommendation espouses a nationwide structure for supporting research, training and technical assistance, raising public awareness, funding critical services, and coordinating resources; specialized training of the judicial system; federal leadership in the area of elder abuse; creation of state task forces or coalitions to develop systemic approaches to elder abuse interventions; development, funding, and implementation of a multidisciplinary research agenda to support professional training and practice on elder abuse; expanded resources for preventing and responding to elder abuse; development of tools and services to enable capacity assessments and surrogate decision-making for elder abuse victims; and support of legal and other services to meet the immediate and crisis needs of victims.

Elder Abuse, August 1996, 102
Expresses the Association's support for efforts to improve the response of the state courts to elder abuse and the Association's adoption of the "Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse" that were developed by the Commission on Legal Problems of the Elderly under a grant from the State Justice Institute (SJI). The Commission's project developed a vision for the future of the courts' involvement in these types of cases by tapping the expertise of judges; court administrators; lawyers; prosecutors and attorneys general; protective services, aging, and social services providers and advocates; law enforcement officers; health care providers; researchers and academicians; and others.

GUARDIANSHIP POLICY

August 2013, 100A
Urges courts with jurisdiction over adult guardianship and governmental agencies that administer representative payment programs for benefits to collaborate with respect to information sharing, training and education in order to protect vulnerable individuals with fiduciaries who make financial decisions on their behalf.

August 2012, 106B
Adopts the Third National Guardianship Summit Standards and Recommendations, dated August 2012, and urges courts, as well as national, state, local, tribal and territorial policy-making bodies to implement them.

February 2009, 111A
Encourages the federal government to provide funding and support for training, research, exchange of information on practices, consistent collection of data, and development of state, local and territorial standards regarding adult guardianship.

Wingspan, August 2002, 108B
Urges state, territorial and local policy-making bodies to implement principles derived from the 2001 Wingspan conference on adult guardianship. Wingspan convened close to 80 experts including representatives from the ABA Commission on Legal Problems of the Elderly and the Section on Real Property, Probate and Trust Law, and resulted in recommendations on: (1) broad-based overarching adult guardianship issues; (2) guardianship diversion and mediation; (3) procedural due process; (4) fiduciary issues; (5) monitoring and accountability; and (6) agency guardianship.

February 2000, 106
Urges: (1) the Senate of the United States to give its advice and consent to the ratification of the Hague Convention on the International Protection of Adults, the final text of which was adopted by the Hague Conference on Private International Law on October 2, 1999; and (2) the Congress of the United States to enact legislation implementing fully and uniformly this Convention which concerns the protection of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their personal, health care or property interests in an international context.

February 1989, 104
Supports the following recommendations of the National Guardianship Symposium, which aim to safeguard the rights and maximize the autonomy of adult disabled wards and proposed wards, while providing for their needs.
Urges the implementation of the recommendations at the state and local level through appropriate legislation, legal and judicial rules and practices, workable programs, and educational sessions.

August 1987 Recommendation
Supports efforts to improve judicial practices concerning guardianship, and adopts the following Recommended Judicial Practices and urges their implementation for the Elderly at the state level.

August 1977 Recommendation
Urges the swift and effective implementation of federal laws and regulations codifying the rights of mentally handicapped persons, and further urges state governments to consider legislation insuring such rights within their respective jurisdictions.

IMMIGRANTS

Immigrant Benefits, August 1997, 102B
Urges Congress and the President to restore to legal immigrants (including lawful permanent residents, refugees and others residing in the United States with permission of the Immigration and Naturalization Service), the same rights to Supplemental Security Income, food stamps and other federal and state funded services, benefits, and assistance, as were available to them prior to enactment of Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the PRA); and opposes any federal, state, local or territorial legislative or administrative action that restricts, denies or otherwise discriminates against legal immigrants (including lawful permanent residents, refugees and others residing in the United States with permission of the Immigration and Naturalization Service) in the provision of government funded services, benefits or assistance.

INTERNATIONAL

International Rights, August 2011, 106C
Urges the United States Department of State and the United Nations and its member states to support the ongoing processes at the United Nations and the Organization of American States to strengthen protection of the rights of older persons, including the efforts and consultations towards an international and regional human rights instrument on the rights of older persons.

LONG-TERM CARE/NURSING HOMES

Nursing Home Arbitration Clauses, February 2009, 111B
Opposes the use of mandatory, binding, pre-dispute arbitration agreements between a long-term care facility and a resident of such facility or person acting on behalf of such resident, and opposes legislation and regulations that would authorize, encourage or enforce such agreements.

HCBS, August 2011, 106A
Urges all federal, state and territorial administrative bodies to continue efforts to expand the availability of home and community based services (HCBS) as a viable long term care option.

Board and Care, August 1989, 121
Supports federal oversight and enactment of state legislation requiring licensure and regulation of Board and Care facilities for adults who need personal assistance, lodging, and meals.

Long-Term Care, February 1989, 105
Supports the enactment of federal and state legislation providing a coordinated and comprehensive system of care and support for Americans of all ages with long-term care needs.

MEDICARE/MEDICAID

Medicare Observation Status Legislation,
February 2014, 110

Urges Congress to enact the Improving Access to Medicare Coverage Act of 2013, (HR 1179) (S 569), or similar legislation that deems an individual receiving outpatient observation care services in a hospital to be an inpatient with respect to satisfying the three-day inpatient hospital stay requirement for Medicare coverage of a post-hospitalization stay in a skilled nursing facility.

Medicaid, August 2005, 113B
Recognizes the financial burden of maintaining the Medicaid program and the need for innovation in shaping more effective health care systems, but opposes any structural or financial changes in the Medicaid program that would weaken the current entitlement nature of the program or shared legal obligation that the federal, state and territorial governments have to provide a comprehensive set of benefits to all individuals who meet eligibility criteria. Supports Medicaid restructuring that adheres to specific criteria.

Medicare, August 2003, 107
Recommends specific reforms in the Medicare claims adjudication process to assure that Medicare beneficiaries are afforded due process throughout all levels of the claims process.

Medicare, August 1988, 110
Supports efforts to improve the administration and judicial process the DHHS uses in accordance with the listed recommended principles by the Symposium on Medicare Procedures.

MISCELLANEOUS AGING  ISSUES

Older Americans Act, August 2010, 106B
Urges Congress and the Administration to reauthorize and implement the Older Americans Act of 1965, as amended, giving increased priority to the delivery of legal services and elder justice. Includes new requirements for legal services under the Act.

Devolution, February 1997, 110
Supports the application of existing Association policy regarding federal benefit programs to states, territories and localities, where primary control and/or funding for such programs is transferred from the federal government to those jurisdictions. 

Home Equity Conversion, August 1995, 105
Supports home equity conversion, including reverse mortgages, as an option for older homeowners; supports consumer safeguards, counseling and information about financial and legal consequences; reiterates existing Association support of laws and policies that disregard loan proceeds from consideration of eligibility for needs-based government programs.

Aging Advocacy, June 1993, 108
Supports the establishment of a special or select committees on aging as permanent committees in the U.S. Senate and House of Representatives.

Judicial Systems, August 1991, 115
Supports efforts to make the state and territorial judicial systems more responsive to the needs of the elderly and persons with disabilities and to that end adopts and urges implementation of the Recommendations of the National Conference on the Court - Related Needs of the Elderly and Persons with Disabilities held February, 1991 under the joint sponsorship of the Association's Commissions on Legal Problem Elderly and on the Mentally Disabled and the National Judicial College, with funding provided by the State Justice Institute and the Administration on Aging of the United States.

PAIN MANAGEMENT

Pain Management, July 2000, 102
Calls for government authority to construe, apply, and if necessary, amend laws regulating the health professions and controlled substances so that these laws do not impose barriers to quality pain and symptom management. Further, the recommendation supports the right of individuals suffering from pain to be informed of, choose, and receive effective pain and symptom evaluation, management, and ongoing monitoring as part of basic medical care. It is emphasized that this right is not abated even where such pain and symptom management may result in analgesic tolerance, physical dependence, or as an unintended consequence shorten the individual's life.

PRO BONO

Pro Bono Emeritus, August 2006, 118
Encourages state and territorial bar associations to adopt practice rules that establish guidelines to allow pro bono legal service by qualified, retired or otherwise inactive lawyers under the auspices of qualified legal services or other non-profit programs.

RETIREMENT INCOME SECURITY/SOCIAL SECURITY/REPRESENTATIVE  PAYEE

Social Security, February 2018, 104 
Urges Congress and the Social Security Administration to strengthen the safeguards and protections for all individuals receiving benefits via the representative payee program, including, but not limited to, appropriate eligibility determinations, improved monitoring and training of payees, access to accounting for beneficiaries, and the appointment of an interim payee when a payee is removed. 

Social Security, August 2014, 115
Urges Congress to reallocate payroll tax revenues between the Old-Age and Survivors Insurance Trust Fund (OASI) and the Disability Insurance Trust Fund (DI), as needed to prevent depletion of the reserves of either Trust Fund.

SSI, August 2013, 100B
Urges Congress to enact the Supplemental Security Income (SSI) Restoration Act of 2013 (H.R. 1601) or similar legislation that strengthens SSI by updating the limits on resources to account for inflation. 

Social Security Backlog, April 2008, Board of Governors Expedited Approval
Urges Congress to enact a level of administrative funding for the Social Security Administration that permits the Social Security Administration to provide its mandated services in a timely manner, promptly and fairly adjudicate applications for disability insurance and supplemental security income benefits, overcome significant disability claims processing times and backlogs, and build the infrastructure necessary to manage the expanding workload challenges presented by serving the aging baby boomers filing disability and retirement claims.

Social Security, August 2005, 113A
Supports continuation of the federal Old Age, Survivors, and Disability Insurance (OASDI) program, commonly known as Social Security and authorized by Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., as a national system of social insurance; supports preservation of the Social Security Trust Funds and long-term solvency of the program; identifies hallmarks of the existing system by which to measure future proposals.

SSA Rep Payee, February 2002, 100
Urges the Administration to support and Congress to enact legislation that would strengthen the safeguards and protections of individuals receiving benefits under the Old Age, Survivors and Disability Insurance programs and the Supplemental Security Income program of the Social Security Act  who, because of such individual’s disabilities and incapacities, are being received and managed by organizations designated by the Social Security Administration as “representative payees.”

Social Security Administrative Fees for Disability Claims, February 1996, 115
Expresses the Association's support for the existing statutory scheme for authorizing and paying representative fees in successful Social Security disability insurance appeals.

Supplemental Security Income, February 1994, 110
Supports in principle the recommendations of the Final Report of the Supplemental Security Income Modernization Project, to improve access to the SSI program; to ensure that claims are handled fairly and efficiency, and to eliminate rules and procedures that are unreasonable; to increase Social Security Administration staffing; to raise the SSI benefit and resource levels; and to stop counting in-kind support as income.

Social Security, August 1993, 102
Supports elimination of the restriction in the Social Security Act which permits older widows and widowers to qualify for disability benefits based on their deceased spouses’ earnings record only within the first seven years following the deceased spouse’s death.

  • Searchable ABA Policy Library