The PDF in which this article appears can be found in Bifocal Vol. 43 Issue 2.
Scrutinizing the Systemic Flaws of Guardianship
After more than seven years providing support and technical assistance to state WINGS (Working Interdisciplinary Networks of Guardianship Stakeholders) on guardianship reform issues, the Commission took lessons learned by that project to the next step, both by a national effort to re-envision the role of guardianship and proposing legislation to accomplish that. The Commission collaborated on a project led by the National Disability Rights and sponsored by the National Guardianship Network (NGN) to plan and conduct The Fourth National Guardianship Summit in May 2021, which focused on the theme of Maximizing Autonomy and Ensuring Accountability. The State Justice Institute and the Borchard Foundation, Center on Law & Aging generously provided financial support.
Each of the 14 NGN members were entitled to appoint up to five delegates to attend and vote at the Summit. Ten other groups interested in guardianship each sent a delegate, and several family guardians, government, and international observers brought the total attendance to 125. The purpose of the conference was to develop consensus recommendations on the future development and reform of state guardianship and conservatorship systems within the broad theme of Maximizing Autonomy and Ensuring Accountability. Twenty-two recommendations were adopted by the Summit.
Of the Summit recommendations, the Commission has prioritized the Summit recommendations for the creation by Congress of an Adult Guardianship Court Improvement Program (GCIP), modeled on the Child Welfare Court Improvement Program that has been in place since 1993. Such a program would provide formula grant funds to each state’s highest court to bring together all the stakeholders that play a role in the lives of persons at risk or under guardianship to develop alternatives to guardianship and to rethink guardianship systems from the ground up. The lack of any significant, steady funding for state WINGS has been their Achilles heel. A GCIP would remedy that barrier.
We have partnered with our Government Affairs staff and the National Center for State Courts to educate key Hill staff about the need for a GCIP and where it could best be incorporated into federal law. We have recommended that it be considered for inclusion into the Elder Justice Act reauthorization bill, because the Act already has a provision for discretionary grants to state courts to address guardianship issues.
In large part because of the Britney Spears case publicity, there has been great interest in Congress in guardianship reform, and we have had positive feedback from the Congressional offices. This will continue to be a top priority in 2022, along with continuing our support of state WINGS, and working with disability advocacy groups to develop funding for other initiatives to limit the use of guardianship. State WINGS or similar coalitions continued to be active to varying degrees in almost half the states.
Putting the Home Back into Nursing Homes
The pandemic, more than any other event in our history, showed the shortcomings in our system of nursing home care with devastating results. Nursing home residents accounted for 34% of total pandemic fatalities in the U.S. Nursing homes residents represent well less than 0.5 percent of the nation’s population. We know that factors such as low nurse staffing, poorly trained and poorly paid nurse aides, high staff turnover, the lack of PPE, and isolation from family all contributed to the debacle. However, one very concrete factor that previously had little serious attention is the physical size and density of nursing home facilities.
The average nursing home in the US has over 100 residents who usually share rooms and bathrooms. In fact, Medicaid does not pay for single rooms except in special circumstances. The multiplicity of staff coming in and out of homes is another vector of density. These larger, denser homes were at highest risk for becoming death traps.
In contrast to the traditional nursing home mode, a variety of small household model nursing homes had a very different experience during the pandemic. The largest and most established small home model is called the Green House Project which originated with pilot funding by the Robert Wood Johnson Foundation in 2001. There are 300 Green House homes nationally, normally built-in clusters of five or six small homes, each with 10 or 12 residents who have single rooms and private baths in a home-like setting with open kitchen, living room with fireplace, and cross-trained staff. Urban variations also exist in multi-floor buildings comprised of separate, self-contained homes on each floor.
The median death rate per 100 residents for traditional nursing homes was 10% to 12.5%, but the rate for Green House Homes was statistically 0. These facts were the motivation for the Commission’s policy resolution, adopted by the ABA in August, calling on Congress and HHS to give serious consideration of phasing in size and design standards for nursing homes that would require conformity to the small, household model. The policy also calls on the Centers for Medicare and Medicaid Services (CMS) to for pay for single rooms under Medicaid, and for federal financial incentives to encourage owners and developers to transform existing facilities and build new ones accordingly.
Already one bill has been introduced that proposes a demonstration program to accomplish these goals, S. 2694, the Nursing Home Improvement and Accountability Act of 2021—S. 2694 introduced by Sen. Ron Wyden (D-OR), and HR 5169, introduced by Richard Neal (D-MA).
Another key aspect of nursing home structure that the Commission examined was ownership and management structures of nursing homes which have become so complex and fragmented that determining whom to hold accountable is virtually a shell game. To create a policy base on which to address this, the Commission has proposed a policy resolution for consideration at the ABA’s February 2022 mid-year meeting. The resolution calls on Congress and CMS to take certain actions to increase transparency in ownership and management of nursing homes and put more focus on transparency of nursing home chains, including disclosure of key chain information on Nursing Home Compare. It also calls on states to require transparency in any proposal to change ownership or management of a nursing home.
Elder Rights are Human Rights
The Commission completed its 5th year as a partner to Justice in Aging as part of the National Center on Law and Elder Rights (NCLER). The Administration for Community Living funds NCLER, and we support the Center’s mission providing substantive expertise on guardianship reform, decision supports, decision making, abuse, health care decision making, and other topics as needed. We produced six webinars in 2021, with substantive issue briefs for each, other practice and provide technical assistance to professionals in law and aging.
Beyond NCLER efforts, the Commission provided a multitude of smaller advisory and consultative support on elder rights and elder planning issues to groups such as WISER (the Women’s Institute for a Secure Retirement), National POLST, Mind Your Loved Ones, and Aging with Dignity.
the elder rights issues we address domestically are also human rights which are the subject of the ongoing work of the United Nations Open-Ended Working Group on Ageing. Since 2011, the Commission has provided its expertise and support to the ABAs appointed liaison to the working group, presently Prof. Bill Mock of the University of Illinois Chicago School of Law. The annual meetings of the U.N. Working Group continue to grapple with the need for an international convention on the rights of older persons.
The Muddled Encounter of Dementia with Criminal Justice
With funding from the Retirement Research Foundation, the Commission has spent the year exploring the treatment of persons with dementia in the criminal justice system. The project includes a literature review and a case law review, which has established that there is very little on point concerning how persons with dementia are treated from first encounter with law enforcement, through release from incarceration. The one area that has gotten significant attention is the significant aging of the prison population and the medical issues that have accompanied that trend. Other critical contact points from initial engagement, assessment, diversion, capacity to stand trial, and community placement alternatives have had little attention or systemic problem-solving. The project will benefit from data representing over 800 survey responses and 40 or more interviews and small focus groups. The project report will be available in the first quarter of 2022.
The Law and Aging Training Event of the Year
Each year in October, the Commission hosts the National Aging and Law Conference (NALC). This past year was the 8th year of the event under the Commission’s stewardship and continues a tradition of the Commission being involved in a national joint conference on issues in aging and law dating back over 30 years. The 2021 conference was virtual, featuring six substantive sessions and numerous networking, information and small group meeting. This year’s conference was attended by 318 people, and once again, the Borchard Foundation Center on Law and Aging, the AARP Foundation, Camilla McRory attorney at law, and the ABA Section of Real Property Probate Trust and Estate Law were financial sponsors of NALC.
Fostering a Synergy of Efforts within the ABA
Aging issues affect virtually every area of law, and within the ABA virtually every area of law is represented. Because the Commission is not an open membership section or division of the ABA, it is able to be a neutral connector and supporter of projects and initiatives across section and division lines. For example, the programming of the ABA Senior Lawyers Division (SLD) which represents ABA members aged 62 and older has obvious overlap with the Commission’s mission. Collaboration between the two have enhanced the work of numerous SLD committees, resulted in regular contributions to the SLD Voice of Experience e-journal and cross-publishing with the Commission’s journal Bifocal, and contributed to SLD webinars. Similar collaborations have thrived with the Section of Real Property, Trust and Estate Law, especially on guardianship issues, and with the Health Law Section through an emerging project on pro bono advance care planning.
The Commission also collaborated with ABACLE throughout the year to produce new content for the ABA’s free online CLE webinars. We produced seven of the programs in 2021, which are then added to the ABA free CLE library which numbers over 600 recorded programs. The free CLE programing has become a premier benefit of ABA membership.
An Eye on Critical State Legislation
An ongoing initiative of the Commission tracks state legislative developments in guardianship law, powers of attorney, elder abuse, and health decisions law. This enables us to provide comparisons of selected features of state law and are updated periodically on the Commission website. An important part of the effort is a collaboration with AARP to analyze selected developments and provide briefing tools for state offices.
Continuity and Renewal of the Commission
This past November, Commission director Charlie Sabatino has announced his intended retirement at the end of January 2022, after serving as senior attorney and then director for a total of 37 years. Fortunately, another experienced Commission staffer David Godfrey was named to take over the helm. David has practiced law for 22 years and been a senior attorney with the Commission for 13 years. His expansive breadth of elder law knowledge and ABA organizational knowledge bring great continuity to the work of the Commission.
The year also brought exciting new energy to the Commission in the appointment of Robyn Shapiro as chair of the Commission and the hiring of Elizabeth Moran as Senior Attorney.
Chair Shapiro steps in with three previous years’ experience as a commissioner and brings with her both ABA leadership skills and broad experience in the health sciences, bioethics, an array of cutting-edge issues that affect providers, researchers, and ultimately the everyday lives of older Americans. She is the founder of Health Sciences Law Group in Milwaukee, WI.
Starting in the spring of 2021, Senior Attorney Elizabeth Moran took on the lead role in our Guardianship WINGS work along with substantive support to the entire portfolio of Commission work. Elizabeth brings substantial experience to the Commission from both her public positions and private practice in disability rights, including serving as deputy director of the Missouri Developmental Disabilities Council; chair of the Missouri State Advisory Committee to the U.S. Commission on Civil Rights; and directing attorney for Midwest Advocacy for Disability Rights, plus more than ten years serving as an adjunct professor at UMKC School of Law. In addition, Elizabeth played a leadership role in Missouri WINGS, serving on its Legislative Drafting Committee.