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Best Practice

Vol. 7, Nos. 3 & 4

On Delivery of Legal Assistance to Older Persons

September 1996

TCSG Announces New National Guardianship Mediation Initiative

TCSG has long been a leader in the study of guardianship law and practice and in advocating maximum autonomy and independence for older persons. Having grappled with the inadequacies of the court guardianship process, we have, since 1991, pioneered the testing and evaluation of mediation as an effective alternative -- an alternative that promotes autonomy, dignity and well-being of older persons while maintaining, even enhancing, vital relationships with and among family and other caregivers. We have also identified appropriate and inappropriate cases for mediation. TCSG first received funds from the National Institute for Dispute Resolution to pilot a project with the Washtenaw County (Michigan) Probate Court. That pilot was so successful that TCSG sought and received funds from Retirement Research Foundation to expand into four new sites (Tampa, Albuquerque, Chicago and Denver) and to create an extensive, about-to-be-released, training/replication guide, The Adult Guardianship Mediation Manual.

Having demonstrated its value, the challenge now is to make guardianship mediation accessible to the thousands of older and disabled persons and their families who have no alternative to court procedures. The Hewlett grant will enable us to work to change current thinking and practice, and move to this next level, i.e. from pilot programs to bringing guardianship mediation into the mainstream. To achieve this we will work directly with four essential audiences: the mediators/ dispute resolution community; the bar, particularly elder law, probate and family law practitioners; the courts, both judges and court administrators; and the aging network which is ideally positioned to affect the way guardianship is pursued.

For more on specific activities to be undertaken as part of this new initiative, see New Grant Allows TCSG to Expand Guardianship Mediation Resources.

Tobacco is an Elderly Issue Too!
James A. Bergman

For years health professionals have said that "tobacco is a children's issue," and it is, since almost 90% of current adult smokers1 started by the time they were 18 -- the legal age for retailers to sell cigarettes to youth. But, tobacco is also an older persons' issue, because that is when most of the pain and suffering occurs, due to the late on-set of many tobacco-related diseases.

When one thinks of the people who have died of tobacco-related diseases, generally one thinks of older relatives and friends, or of older celebrities, such as Sammy Davis, Jr., Pat Nixon, Bette Davis, Audrey Meadows, Edward R. Murrow, and Wayne McLaren -- one of the original Marlboro man models.

Nationally, over 434,000 people2 die annually from tobacco-related diseases, such as cancer, heart disease, and lung disease, and an additional 53,000 or more persons die from the effects of second-hand smoke.3 The estimated medical care costs annually in the United States due to the treatment of persons with tobacco-related diseases is $50 billion.4

In a time when Congress is attempting to slash the Medicare budget, it is astounding that, of $87 billion spent in 1994 by Medicare on in-patient hospital care, about $16 billion was for treatment of smoking-attributable diseases, according to a study released by former Secretary of Health, Education & Welfare (now Health & Human Services) Joseph Califano.5 All these costs are for persons who are elderly or disabled and on Medicare. Tobacco is an elderly issue! And, tobacco is an issue for organizations, including legal programs, serving the elderly.

As Congress continues to debate Medicare and Medicaid cost issues, the public policy implications of tobacco on the elderly and on these programs should not be ignored by the Aging Network. Joseph Califano stated the issue succinctly: "If the problems of substance abuse [particularly tobacco] did not exist, we would not now be concerned about the solvency of the [Medicare] Hospital Trust Fund....[T]he proposed solutions involve raising taxes or cutting benefits....[H]owever, little time is spent thinking about how we can keep elderly people healthy and avert hospitalizations. The worst example of this is our failure to move aggressively on the pervasive impact of substance abuse, including tobacco, alcohol and drugs, on both Medicare and overall health costs."6 Tobacco is a public policy issue of direct concern to the elderly.

10 Million Older Smokers and Growing

Nationally, approximately 13% of the over-65 population are smokers,7 equaling over 4 million older Americans.8 Of the over 31 million persons aged 65 and over,9 almost 15% of men and almost 12% of women are smokers.10 Of the approximately 22 million Americans aged 55 to 64,11 about 28% are smokers,12 equaling about 6.2 million smokers. Thus, over 10 million older Americans today are smokers, or about 19.2% of the 55 and over population.

By contrast, the Surgeon General's report in 1994 on tobacco use among youth estimated that "at least 3.1 million U.S. adolescents are current smokers."13

As America moves into the 21st century, the elderly population will increase much more dramatically than younger age groups. Between 1989 and 2030, the 65 and over population is expected to more than double,14 and this population will move from 12.6% to almost 22% of the total population by 2030.15 The 55 to 64 year old population will grow from the current 8.5% of the total population to 11.6%.16 Thus, if the current percentages of older smokers remain constant, there will be about 18 million older smokers out of a projected 96 million people aged 55 and over.17 The human and health care cost implications of the tobacco-related diseases these elders will endure is staggering. Tobacco is an elderly issue!

Addiction & the Benefits of Cessation

The experience of older smokers is instructive as an example of the addictiveness of tobacco. Most older persons who smoke have been doing so for over 40 or 50 years, at least. And, among adult smokers, older Americans are the least likely to want to quit -- undoubtedly due to the intensely addictive qualities of tobacco.

A U.S. National Health Survey found that about 70% of current adult smokers would like to quit, and about 34% try to quit each year, but only about 2.5% are successful.18 But, older persons were the least likely to want to quit, with 50-60% saying they wanted to do so.19

Yet, the health benefits of quitting smoking are almost immediate for older persons, as well as younger adults and youth. Recent studies have shown that, within days of quitting, the health of the former smoker improves, and it continues to improve as the weeks, months and years go by.20 The likelihood of former smokers having tobacco-related diseases also decreases the longer a person refrains from smoking, particularly heart and lung diseases, as well as risks of stroke and cancer.21

Aging Network organizations, particularly Senior Centers and casework agencies, have the potential to very effectively address these issues. Smoking cessation programs can generally be arranged, or referrals made to such programs, by working with a variety of organizations which operate such programs. Aging Network agencies can contact local American Lung Association (ALA), American Cancer Society (ACS), American Heart Association (AHA) agencies or state Health Departments for information on smoking cessation programs that are available. If enough older persons are interested in attending a smoking cessation program, many of these agencies would consider running the sessions at locations that are most convenient for attendees, such as Senior Centers.

In addition, State and Area Agencies on Aging, Senior Centers and other Aging Network agencies can take a leading role in disseminating information about the health effects of tobacco use, the health benefits of smoking cessation and the health hazards of second-hand smoke. Aging Network agencies can work with ALA, ACS, AHA groups to arrange for speakers at Senior Citizens group meetings to discuss these issues, as well as making written materials available.

Second-hand Smoke and the Elderly

Fortunately, over 80% of the elderly do not smoke. However, environmental tobacco smoke (ETS) is a serious health concern for all elders, as it is for other age groups. The 1992 E.P.A. report classified ETS as a carcinogen known to cause cancer and stated that "passive smoking has subtle but significant effects on the respiratory health of nonsmoking adults, including coughing, phlegm production, chest discomfort, and reduced lung function."22

ETS is a concern for all older persons, but it is particularly dangerous for elders with respiratory illnesses, such as emphysema or asthma, which can be exacerbated by inhalation of second-hand smoke. Further, second-hand smoke poses a clear danger to older persons with heart disease, allergies or other lung diseases.23

The most effective way to prevent harm from ETS is the implementation of smokefree public places policies. Today, most health facilities are smokefree, increasing numbers of businesses are smokefree, and many shopping malls, restaurants and other public places are smokefree. Aging Network programs appear to have a wide variety of policies on smokefree facilities. In the clear interest of protecting the health of elders and staff members, Aging Network agencies should take a leading role in adopting smokefree policies in their own facilities. Further, Aging Network agencies should join other ALA, ACS, AHA and health groups in their localities and states who are actively advocating for smokefree policies in public facilities of all types.

Tobacco Is an Intergenerational Issue

For older persons, tobacco is also an intergenerational issue. Very few elders want their children or grandchildren to smoke or chew tobacco, even if they are themselves smokers. For older persons, these feelings are compounded by the fear of seeing their children or grandchildren suffer and die from cancer, lung or heart diseases before they have had the opportunity to live full lives.

Because elders and youth face the same dangers from second-hand smoke, and because elders do not want children purchasing tobacco products and becoming addicted to tobacco, the opportunity is great for building intergenerational coalitions of youth and elders. Such intergenerational efforts can be focused on various public policy issues concerning tobacco, such as smokefree public places laws, stopping tobacco sales to minors, and tobacco excise tax increases. Such intergenerational coalitions can be especially effective since few segments of the population are as well thought of by policymakers as youth and elders.

Aging Network agencies can play a leading role in facilitating the creation of such intergenerational coalitions, as well as in encouraging elders to become active and involved with tobacco-control groups locally and statewide. Again, ALA, ACS, AHA and state Health Departments can be contacted to learn more about who is doing what on these issues. Today, almost all states have active statewide advocacy coalitions working on tobacco and health issues, and many localities have similar coalitions. Representatives of the Aging Network have only rarely been involved in such coalitions. Yet, tobacco is an elderly issue.

TCSG Initiates Tobacco & the Elderly Project

While much attention in recent years has, rightfully, been focused on preventing  children and youth from becoming addicted to tobacco, until now there has been very little done concerning tobacco and the elderly. As indicated above, that lack of involvement needs to change -- for the health of all generations.

With support from the Michigan Department of Community Health and the national ASSIST program, The Center for Social Gerontology (TCSG) has begun a special tobacco and the elderly project. We are developing a statewide network of elder rights advocates -- both elders and persons working with them -- to work on reducing tobacco use and exposure to ETS among older and younger persons. TCSG is also working with local organizations to increase their knowledge about tobacco and the elderly issues, as well as about tobacco issues affecting all ages.

We are developing materials on tobacco and the elderly issues, including health issues, tobacco cessation, tobacco advertising, ETS and related topics. A quarterly Tobacco & the Elderly Notes newsletter is disseminated to Aging Network and tobacco-control organizations. Further, we are preparing a special resource guide, with slides, on Tobacco and the Elderly, which will be available early in 1997.

Tobacco is an elderly issue! And, the time has come for more attention to be focused on this issue. Persons interested in TCSG's project on tobacco and the elderly may write, call, fax or e-mail us for more information.

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James A. Bergman, J.D., is former Executive Director of STAT (Stop Teenage Addiction to Tobacco). He is now Co-Director of The Center for Social Gerontology, where he is also directing the new project on tobacco and the elderly described here.

1 David E. Nelson et al., Trends in Cigarette Smoking Among US Adolescents, 1974 Through 1991, 85 Am. J. Pub. Health 34 (1995).

2 U.S. Dep't of Health and Human Servs., Preventing Tobacco Use Among Young People a Report of the Surgeon General (1994) (introductory letter from Secretary of Health and Human Services Donna Shalala) [hereinafter Surgeon General's Report].

3 Stanton A. Glantz & William W. Parmley, Passive Smoking and Heart Disease: Epidemiology, Physiology, and Biochemistry, 83 Circulation 1 (1991). See also, James L. Repace & Alfred H. Lowrey, An Enforceable Indoor Air Quality Standard for Environmental Tobacco Smoke in the Workplace, 13 Risk Analysis 463, 463-4 (1993).

4 Office on Smoking and Health, Centers for Disease Control and Prevention, State Tobacco Control Highlights--1996 112 (1996).

5 Adam Clymer, Addiction Center Says Tobacco's Hospital Costs Will Imperil Medicare, N. Y. Times, May 17, 1994; and Medicare's Big Cigarette Burn, N. Y. Times, May 18, 1994.

6 Center on Addiction and Substance Abuse at Columbia University, The Cost of Substance Abuse to America's Health Care System -- Report 2: Medicare Hospital Costs 1 (1994).

7 Centers for Disease Control and Prevention, Surveillance for Selected Tobacco-Use Behaviors -- United States, 1900-1994, 43 Morbidity & Mortality Wkly. Rep. 5, 9 (November 18, 1994).

8 Id. at 13.

9 U.S. Dep't of Health and Human Servs., Aging America: Trends and Projections 3 (1991) [hereinafter Aging America].

10 Centers for Disease Control and Prevention, Cigarette Smoking Among Adults -- United States, 1993, 43 Morbidity & Mortality Wkly. Rep. 926 (December 23, 1994) (averages of 1992 and 1993 smoking rates for 65 and over population).

11 Aging America, supra note 9, at 3.

12 Barbara K Rimer & C. Tracy Orleans, Older Smokers, in Nicotine Addiction: Principles and Management 385 (C. Tracy Orleans & John Slade, eds., 1993).

13 Surgeon General's Report, supra note 2, at 58.

14 Aging America, supra note 9, at 6.

15 Id. at 7.

16 Id.

17 Id.

18 Centers for Disease Control and Prevention, supra note 10, at 928-929.

19 Id. at 927-928. See also, Rimer and Orleans, supra note 12.

20 See, e.g., U.S. Dep't of Health and Human Serv's, The Health Benefits of Smoking Cessation (1990); Cindy L. Jajich et al., Smoking and Heart Disease Mortality in the Elderly, 252 JAMA 2831 (1984); R. L. Rogers et al., Abstention from Cigarette Smoking Improves Cerebral Perfusion Among Elderly Chronic Smokers, 253 JAMA 2970 (1985); Smoking Cessation Offers Significant Benefits for Older Adults, Geriatrics, May 1992, at 91; and C. Tracy Orleans et al., Long-Term Psychological and Behavioral Consequences and Correlates of Smoking Cessation, in The Consequences of Smoking: A Report of the Surgeon General (1990).

21 Annlia Paganini-Hill & Grace Hsu, Smoking and Mortality Among Residents of a California Retirement Community, 84 Am. J. Pub. Health 992-995 (1994). See also, Millicent W. Higgins, et al., Smoking and Lung Function in Elderly Men and Women, 269 JAMA 2741-2748 (1993).

22 Environmental Protection Agency, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, 1-6 (1992).

23 Massachusetts Dep't of Public Health, Indoor Tobacco Smoke and Ventilation, Public Health Fact Sheet (November 1989).

Adult Guardianship Mediation
Susan D. Hartman

"Take One": Robert Jones approaches an attorney because he is concerned that his sister, Linda Smith, is not giving their mother, Mary Jones, the care she needs and is wasting her assets. Mary has lived in Linda's home for the last year. Linda is a single working mother with three children. The attorney prepares and files a petition requesting that Robert be appointed as guardian of his mother. Mary and Linda are both angry and upset at this action. The matter escalates into litigation in which accusations are exchanged. Mary is scared and humiliated; Linda is defensive, and Robert is indignant. The judge appoints a third party non-relative as guardian. The guardian moves Mary into an adult care home. All parties end up angry and hurt.

"Take Two": Robert Jones approaches an attorney because he is concerned that his sister, Linda Smith, is not giving their mother, Mary Jones, the care she needs and is wasting her assets. Mary has lived in Linda's home for the last year. Linda is a single working mother with three children. The attorney suggests that the parties try mediation. All three parties meet with a mediator who helps them identify needs and issues. They recognize that Mary enjoys living with Linda, but that she is lonely while Linda is at work. They also acknowledge that Mary is somewhat confused about her bills and financial situation, and that Robert is able and willing to help out. They agree that Mary will continue to live with Linda, and that Robert will help Mary with her bills and accounts each month. Mary will start going to a senior center three days a week. No guardian will be appointed. All parties agree to meet again in three months and review how things are going and make modifications as necessary. The parties end up understanding and respecting each other's concerns.

A. Guardianship and Its Consequences

Guardianship at its best is a way to care for and protect adults who are not able to meet their own personal needs or make decisions about their personal care or financial needs. It results from a court determination that a person--the respondent or alleged incapacitated person--is "legally incapacitated" and incapable of handling his or her personal or financial affairs or both. The court then gives to another--the guardian--the decision-making rights of the incapacitated person. Full guardianship constitutes one of the greatest deprivations of independence and liberty that a person can experience; the person typically loses most rights he or she has as an adult citizen. This loss includes such basic personal, contractual and legal rights as choosing where to live, handling one's own finances, making medical decisions, and even, in some states, voting or choosing to marry. Although exact terms and procedures vary, every state has a statute governing adult guardianship.

In the last fifteen to twenty years, advocates for persons who are older or have disabilities have called for more due process safeguards and procedural protections to protect respondents in court and to prevent unnecessary restriction of rights. During this time, all states have revised their guardianship laws to add rights and protections for the alleged incapacitated person. These reforms have included the rights to an attorney, to notice in an understandable form, to appear at the hearing and confront witnesses, to an independent medical examination, and the right to the least restrictive available alternative. A necessary result of implementation of due process rights is that the parties and court then take an adversarial approach to conflicts: the process becomes less a paternalistic imposition of supposed benefits on the respondent and more of a typical litigious, adversarial proceeding.

At least two concerns have arisen since these reforms have been enacted. The first is that, notwithstanding the reforms, guardianship hearings actually continue to be routine and pro forma, with little serious investigation of the capacities and incapacities of the individual, or of alternatives to guardianship. Hearings are typically extremely brief, usually under fifteen minutes. The person threatened with guardianship--often an older person--ordinarily has little or no role in the process that determines whether guardianship is warranted and often is not even present at the hearing. Statutory requirements are seen as hoops to jump through, not as a means of identifying needs and limiting intervention in the respondent's life.1

The second concern is that even if procedures are carefully followed, the adversarial process itself imposes unnecessary economic and emotional costs to the parties in many cases. The adversarial model typically results in a "win-lose" situation and forecloses possibilities of dialogue among the parties to explore alternative approaches and reach mutually satisfactory solutions. A petition for guardianship can have dramatic and traumatic consequences not only for the older individual, but for all the people involved. Petitions often arise out of, or lead to, disputes among family members or caregivers, or between the person alleged to need a guardian and the person requesting guardianship. Moreover, the process itself is often bitterly destructive of family relations. For example, parents whose children seek guardianship over them may feel betrayed and demeaned, or siblings may battle over who should be guardian or what is the best plan for the parent, when their basic concern is protection of inheritances. The granting of a guardianship by the court typically does little to ameliorate the situation.

An advocate for the respondent often finds him or herself facing difficult choices: do I disrupt the "family harmony" and possibly end up with the person's actual needs not met, by taking a strong adversarial position and asserting all rights? or do I let others take control of my client's life so that his or her apparent needs are met? Neither position seems ideal or likely to result in a satisfied client. We propose here a third alternative: mediation of the issues, either before or after a petition for guardianship has been filed.

B. Mediation As A Solution

The use of mediation can help older individuals and concerned family and friends find alternatives other than guardianship to resolve the issues that originally led to filing of the guardianship petition. Mediation is a voluntary, informal process in which the disputing parties meet in a private, confidential setting to find a mutually acceptable solution to their problems with the help of a neutral person (the "mediator"). The mediator does not judge or force the parties to reach an agreement. Nor does the mediator act as an evaluator or make a recommendation to the court. Rather, the mediator helps the parties communicate their concerns, identify issues to be resolved, and develop and agree upon a workable solution. If no agreement is reached, the court process is still available, although the content of the mediation session is not admissible as evidence. Mediation focuses on solving the problem, and allows the persons involved to search for more creative responses. It can allow the needs of the older person to be met without unnecessarily taking away the person's fundamental rights and autonomy.2

Since 1991, The Center for Social Gerontology (TCSG) has conducted pilot projects exploring the use of mediation in adult guardianship cases. The first project, through the Washtenaw County (Michigan) Probate Court, continues today, and is now under the direction of the local Dispute Resolution Center. Mediators from four additional mediation programs in Albuquerque, Chicago, Denver, and Tampa3 received training and technical assistance from TCSG in 1995 and are now mediating adult guardianship cases.

Because TCSG's model has involved referrals from guardianship courts, almost all of our pilot cases have been ones in which a guardianship petition had been filed. Issues included disputes about how the needs of the respondent could best be met, where the respondent should live, who should be guardian, what supervision (medical or personal) the respondent needed, and how property should be handled. About 35% of the cases in the pilot projects were cases in which a dispute arose after a guardian had already been appointed. These included disputes such as who should be successor guardian, whether the ward's funds had been appropriately spent, whether the ward should be institutionalized, or whether the guardian's powers should be limited or the guardianship terminated. Only a few cases arose before the parties went to court. These cases included issues of living place, use of funds, and daily care.

C. Appropriateness of Mediation

We have found that several factors are important if mediation is to allow parties to resolve guardianship issues without the financial and emotional costs of litigation. First, all necessary parties must be able and willing to participate in the process. If the older person (respondent) has an opinion on the dispute but is unable to take part in the process, even with the assistance of counsel, then mediation is inappropriate.

A second factor is maximum participation for the respondent. Because of balance of power concerns inherent in an allegation of legal incapacity, our policy has been to have an attorney or other advocate present to help the respondent in the mediation as needed. The attorney does not take the place of the respondent. If the respondent has an opinion on the issue being discussed, he or she is always a part of the mediation. Because of the definition of the mediation process, no decision will be made unless the respondent agrees with it. Even if the respondent is not an active disputant (e.g., in a dispute between siblings over who will be guardian), the respondent will always take part if he or she is able to do so. Only if he or she is not an active disputant and is unable to take part in the mediation, does the attorney or other advocate speak for the respondent in the mediation session.

A third factor is that the participants in the mediation must be able to learn about available resources. When trained mediators are familiar with community resources and services, they may be able to help parties explore options. Advocates and other professionals involved with the parties may also be of assistance in exploring options. However, in mediation, the role of the mediators or professionals will be not to recommend or refer, but to assure that the parties have the information they need to make reasonable choices, acceptable to all parties involved.

D. Availability & Use of Mediation

Mediation is not yet available to most families facing guardianship issues. There are at least three possible reasons for this. First, most mediators are not trained to do mediation involving guardianship issues. These cases can be quite complex, involve many parties, take a long time, and deal with a multitude of issues. In addition, there is usually an allegation of legal incapacity, which raises issues of ability to mediate and need for representation. Most mediators without special training do not feel able to take on these cases, and thus mediation may not be available even if parties want it.

The second reason that more cases do not go to mediation is that older people, their families, advocates, attorneys, aging agencies, and courts either do not know that mediation is possible, or are not sure that it is appropriate in adult guardianship cases. Mediation is a new and emerging field, and many individuals have never heard of it. While some courts have active mediation referral programs, particularly in specialized areas, such as divorce, other courts are just exploring the possibilities. TCSG's pilot efforts suggest that as people learn about mediation, they are satisfied with it. A substantial majority of both parties and attorneys who answered TCSG's evaluation questionnaires in our pilot sites said that they would use mediation again and recommend it to others. Because mediation is voluntary, often education about the process is necessary in order for people to want to try it.

Thirdly, because guardianship is often considered a "last resort," by the time someone files a guardianship petition, he or she may not be willing to consider other options. Attorneys and agencies working with older people and their families need to consider mediation as an alternative before a petition is filed, so that adversarial positions are not so firmly established, and parties are possibly more open to working and talking together.

E. New Grant Allows TCSG to Expand Guardianship Mediation Resources

TCSG is very pleased to have received a two-year grant from The William and Flora Hewlett Foundation to help address all of the above concerns and to bring adult guardianship mediation into the mainstream. Under the new project, TCSG will work extensively with courts, mediators, attorneys, agencies serving the elderly and others throughout the country to establish guardianship mediation programs and expand the use of mediation in cases where petitions have been filed and in cases where guardianship is being considered.

Two three-day training seminars on Adult Guardianship Mediation will be held in the Detroit metropolitan area, and will be open to persons from around the country. The first is in Ann Arbor on April 10-12, 1997. These national training seminars will focus on how to establish adult guardianship mediation programs and will provide specialized training for mediators on the laws, issues and mediation skills needed to mediate adult guardianship cases. They are targeted particularly to mediators and to court personnel and mediation program administrators. Day-One of the seminars will be devoted to establishing programs. Days Two and Three will be advanced training for mediators, including role plays based on actual cases. Contact TCSG for registration information.

In four selected states (two per year), TCSG will also provide extensive planning, training and technical assistance to develop statewide guardianship mediation networks and to establish mediation programs within the states. Selected states will receive a three-day state-specific training/network development session, with one day devoted to the practical steps of establishing and operating guardianship mediation programs, developing a referral and intake process, and maintaining a network among the relevant entities; and two days devoted to mediator training. States will be chosen through an application process. Applications and selection criteria for 1997 are available upon request from TCSG.

A prominent part of TCSG's training and technical assistance builds on an about-to-be-released reference book, The Adult Guardianship Mediation Manual. This excellent and extensive volume was developed based on five years' experience with our pilot programs. It will be available for sale to those unable to attend a seminar; and TCSG will be able to provide limited technical assistance to purchasers.

For more information about any aspect of this exciting new initiative, call Susan Hartman or Claire Tinkerhess at TCSG at (734) 665-1126.

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Susan D. Hartman, J.D., is Directing Attorney for The Center for Social Gerontology's Guardianship Mediation Program.

1 For further discussion of guardianship process, see Lauren Barritt Lisi et al., National Study of Guardianship Systems: Findings and Recommendations (TCSG, 1994).

2 For further discussion of guardianship mediation process, see Susan D. Hartman and Saidy Barinaga-Burch, Mediation Can Provide a Good Option in Adult Guardianship Cases, 20 SPIDR News 1 (Winter 1996).

3 Mediators from Southfield, Michigan were also trained, although their center is not formally part of the pilot project.

Alert! Criminalization of Asset Transfers to Qualify for Medicaid

Elder law attorneys, state and area agencies on aging, older persons, and the many others who assist older persons with planning and meeting their needs for long term care should be made aware of the following recent change affecting Medicaid asset transfer law. The change is the result of a provision that was buried in the recently passed Kassebaum-Kennedy health reform bill (H.R. 3103). This Health Insurance Portability and Accountability Act of 1996 ("Health Reform Act") was signed by President Clinton on August 21, 1996 (Pub. L. No. 104-191). The Medicaid transfer provision, which was scarcely noticed until after the bill had been passed, has very serious implications for older persons seeking Medicaid assistance for long-term care. The provision is poorly drafted so that its precise meaning is unclear, but essentially it will make it a federal crime to transfer certain assets to qualify for Medicaid for nursing home or other long-term care.

A. Background

Although Medicare is the principal health care insurance for almost all individuals 65 years or older, it provides very limited coverage for long-term care, such as the cost of a nursing facility; and only about five percent of nursing home residents have long-term care insurance.1 As a result, many older individuals in need of long-term care deplete their savings paying for it privately, then turn to Medicaid for assistance. Medicaid is a needs-based program. To receive Medicaid benefits, an applicant's income and assets may not exceed certain state-specific limits. The purpose of Medicaid is, of course, to provide medical assistance to needy individuals. In an effort to qualify for Medicaid benefits, some individuals may attempt to divest themselves of their assets, by transferring them to family members or friends or setting up trusts.

B. Existing Law

Congress has previously addressed the issue of improper transfers and established & Penalties civil, not criminal, penalties. The purpose of the law is to discourage individuals from transferring their assets to family, friends, or others in order to qualify for Medicaid nursing facility or other long-term care benefits, while preserving their assets. This is a complex area of law which involves questions of intent, exempts certain types of asset transfers from penalty, etc.; and readers should not look to this article for an explanation of existing law. The brief information provided here is merely to place the recent changes in context.

Generally, under Medicaid law, there is a set period of time (the "look-back" period) during which the uncompensated transfer of assets by a Medicaid applicant or his/her spouse results in a period of ineligibility for Medicaid payment of nursing home care or care under a home and community based waiver, at state option, or other long-term care.2 For most transfers, the "look back" period is the thirty-six months prior to application; in the case of certain trusts, it is sixty months prior to application.3 In other words, such things as making gifts or selling property without receiving fair market value during the three years before applying for Medicaid, makes the applicant ineligible for Medicaid benefits for a certain amount of time. The period of ineligibility is equal to the value of all uncompensated asset transfers during the "look-back" period, divided by the monthly cost of nursing facility services in the given state.4 There is no set limit on the resulting period of ineligibility.5 An individual may attempt to prevent the penalty by demonstrating that the assets were transferred for a purpose other than to qualify for Medicaid.

C. Unexpected Move

On January 1, 1997, a major change will take effect. As a result of the Medicaid from Civil to asset transfer provision in the "Health Reform Act" mentioned above, "knowingly Criminal Penalties and willfully" transferring assets to qualify for Medicaid nursing home or long-term care benefits will not only make an applicant ineligible for benefits for a period of time, it will make him or her a criminal and is punishable by fine and/or prison.

The primary focus and purpose of the "Health Reform Act" was not to address Medicaid issues; it was to address issues of coverage and portability of health insurance, e.g. to limit insurance companies' ability to restrict coverage of children and adults with health problems and to require insurers to offer individual coverage to people who lose group coverage. These are the issues that were discussed and debated, that received media coverage, and on which hearings were held. Thus, in spite of its serious consequences, the Medicaid asset transfer provision received almost no public scrutiny and there is no meaningful legislative history describing the problem it was meant to address or why existing law and penalties were not considered adequate to address the problem.

The asset transfer law that we must now grapple with is extremely problematic in a number of ways, with a major problem being that it is very poorly drafted. It is impossible to know, for example, whether the crime is a misdemeanor or felony, exactly what the criminal activity is, or who the criminal is. The new provision was added to existing Medicare/Medicaid fraud law and reads as follows. (New language is in bold.) ("Title XIX" is the Medicaid Title in the Social Security Act.)

(a) Making or causing to be made false statements or representations
Whoever --
(1) - (5)
(6) knowingly and willfully disposes of assets (including by any transfer in trust) in order for an individual to become eligible for medical assistance under a State plan under title XIX, if disposing of the assets results in the imposition of a period of ineligibility for such assistance under section 1917(c), (To be codified as 42 U.S.C. 1320a-7b(a)(6))

shall (i) in the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing (by that person) of items or services for which payment is or may be made under the program, be guilty of a felony and upon conviction thereof fined not more than $25,000 or imprisoned for not more than five years or both, or

(ii) in the case of such a statement, representation, concealment, failure, or conversion by any other person, be guilty of a misdemeanor and upon conviction thereof fined not more than $10,000 or imprisoned for not more than one year, or both.

In addition, in any case where an individual who is otherwise eligible for assistance . . . is convicted of an offense under the preceding provisions of this subsection, the State may at its option . . . limit, restrict, or suspend the eligibility of that individual for such period (not exceeding one year) as it deems appropriate; but the imposition of a limitation, restriction, or suspension with respect to the eligibility of any individual under this sentence shall not affect the eligibility of any other person for assistance under the plan, regardless of the relationship between that individual and such other person.

D. Questions/Problems

Clearly this language raises many questions and the new provision presents serious Analysis by problems and dilemmas for those in need of Medicaid long-term care benefits. Patricia Nemore, Patricia Nemore of the National Senior Citizens Law Center (NSCLC) has prepared J.D., NSCLC an excellent analysis of these questions and problems and, rather than re-inventing the wheel, we are reprinting Ms. Nemore's Analysis in its entirety below. Those who wish further information can contact Ms. Nemore at NSCLC directly.6


Is the crime a misdemeanor or a felony?

A casual reading of this entire provision (if such a reading were actually possible) suggests that the crime intended by the provision is a misdemeanor, punishable by up to $10,000 in fines or up to one year in prison, or both. That is, the felony portion of the law appears to apply to providers of services to Medicare or Medicaid recipients and not to beneficiaries or their agents or family members. However, the conference report on the bill raises ambiguity as to the intent of the provision's sponsors. In describing current law, the conference report refers to program-related felonies and states that the new provision would add "a new crime to the list of prohibited activities. . ." Conf. Rept. 104-736; 104 Cong. Rec. H9536 (July 31, 1996).

Is there any penalty at all for the prohibited act?

It is difficult to read the provision so that it makes any sense at all within the context of existing law, since the penalties are imposed for certain "statements," "representations," "concealments," "failures" and "conversions" but not explicitly for "disposing of assets." Assuming this ambiguity would pass Constitutional scrutiny, which it may not, questions remain as to what exactly the criminal act is and who the possible criminals are.

Transfers that cannot be criminal under this provision

Since only transfers that result "in the imposition of a period of ineligibility for such assistance under section 1917(c)" are made criminal, clearly those protected from penalty are not. Thus, the following transfers are not implicated:

a. transfers of the homestead to a spouse, dependent or disabled child, certain siblings and certain caretaker children;

b. transfers of any other asset to a spouse or dependent or disabled child or to another for their sole benefit;

c. transfers to a trust for the benefit of a disabled individual under 65;

d. transfers intended to be disposed of for fair market value, transfers exclusively for a purpose other than to qualify for Medicaid and transfers where the asset was returned to the individual; and

e. transfers where applying a penalty would work undue hardship.

It also appears likely that transfers made outside the look-back period cannot be criminal, since they do not result in any period of ineligibility. Thus, transfers (other than those to or from a trust) more than 36 months before application are not implicated. Transfers to an irrevocable trust, to the extent the assets are not for the benefit of the applicant, and transfers from a revocable trust to someone other than the applicant or protected family members made more than 60 months before application are also not affected.

Individuals applying for Medicaid services other than nursing facility services or care provided under a home and community-based care waiver are not subject to the criminal provisions, unless a state has chosen the option to broaden the scope of existing transfers of assets penalties to other long-term care services.

What activity is criminal?

Since the knowing and willful disposition of assets only becomes criminal if it results in the imposition of a period of ineligibility, it appears that what triggers the possibility of application of the provision is applying for Medicaid within the lookback period. It seems relatively clear that, if one applied within the time that a period of ineligibility would be running, one could be criminally liable if the "knowing and willful disposition" "in order to become eligible" requirements could be proved. Example: I give away $10,000 in January 1997 and apply for Medicaid in February 1997. Assuming a $5,000/month cost, my penalty would run through February, so I am still in the penalty period when I apply. If the government could demonstrate the criminal intent, I would be liable.

Less clear is the effect of the law on transfers made for which any possible period of ineligibility would have run out by the time of application. Examples Same as above, but I apply for Medicaid for nursing facility services in July 1977. Although I have to report the transfer made in January, because it is within the lookback period, no period of ineligibility is imposed because any penalty that might have applied ran out in February. This latter example is the more likely scenario for many individuals (it could apply to many people who transfer assets relying on the so-called rule of halves); arguably, the criminal penalties could not apply in this situation. Advocates who have considered application of the criminal provision differ in their view of its reach to situations where the penalty period has expired.

Who is the criminal?

"Whoever. . . knowingly and willfully disposes of assets. . . in order for an individual to become eligible for medical assistance," if other factors are present, has committed a crime. Thus, the target of the law is the person who disposes of the assets. Since usually only the owner of the asset or his/her agent can dispose of it, the criminal, apparently, is the individual applying for Medicaid, an attorney-in-fact for that person, a conservator for that person or possibly a joint tenant of joint-held property. Some have suggested that an attorney advising a client to transfer assets might be liable under conspiracy statutes. If the attorney assists in the transfer, by preparing papers in addition to providing the advice and counsel, is she or he also liable for aiding and abetting in the perpetration of a crime? The provision demands further analysis by those familiar with criminal law.

Additional Penalties

The fraud provision to which this amendment is added allows states to impose yet further penalties, in addition to the fines and imprisonment authorized in the first part of the law. For anyone convicted of an offense under this law, a state may also "limit, restrict or suspend" the individual's eligibility for up to one year. This period of ineligibility appears to be different from, and possibly in addition to, any period of ineligibility required under 42 U.S.C. 1396(c). Thus, an individual applying for benefits who made a transfer within the lookback period could incur a period of ineligibility for transferring assets, be found criminally liable and be subject to fine and/or imprisonment, then be found further ineligible for benefits for up to one year, based on the criminal conviction.

Other Considerations

The ambiguity of the reach of the criminal provision results in a de facto increase in the civil penalty for transferring assets. Under current law, the delay in eligibility for those who transfer assets without receiving fair value is related to the amount of the gift on the premise that if the money had not been given away, it could be used to pay for nursing home care. The only way to assure protection from application of the criminal provision is to avoid applying for benefits during the look back period. Thus, the ineligibility delay becomes an absolute period of three (or in the case of trusts, five) years.

People who are lawfully eligible for Medicaid will be discouraged from applying. Those individuals with the best legal advice will be informed that the criminal intent standard is a high one for prosecutors to meet. For example, a grandmother who applied for Medicaid two years after giving her granddaughter $10,000 for college is unlikely to be found to have the requisite knowing and willful intent. However, many people applying for Medicaid cannot afford legal advice and are not well informed about their rights. These individuals will not know particulars of the criminal provision, only that they could go to jail if they gave away money then needed public benefits.

Nursing homes will use the criminal law to encourage people to pay privately, even when they are eligible for Medicaid. Nursing homes prefer residents paying at the higher, unregulated private rate. They often ask people to agree to pay privately for a specified period of time, regardless of whether they would be eligible for Medicaid during that time. Facilities may inform resident that if they apply for Medicaid and have made any gifts within the last three years, they could go to jail. Residents and their families will feel pressured to pay privately, even when they are eligible for Medicaid.

The focus of the criminal penalty is frail, old women. By its terms, the criminal provision penalizes the person transferring the asset. In most cases, this will be the owner of the asset, i.e., the individual applying for Medicaid for nursing facility care. The typical nursing facility resident is an 85 year old woman without a spouse needing help with several activities of daily living.

Existing penalties work. While the press has focused attention in recent months on the issue of people giving away money to become eligible for Medicaid to pay for their nursing home care, the meager data that exists on this subject supports the view that existing penalties are effective. The single study that has tried to quantify the practice was undertaken by the General Accounting Office in Massachusetts in 1993. The GAO found that 13% of all applicants in a one month period had transferred some assets without fair value; of those transactions, nearly 70% of the total value transferred was related to applications that were denied or withdrawn. In other words, the individuals who had transferred assets were not granted Medicaid eligibility.

Congress addressed the issue of improper transfers in 1993, by increasing existing civil penalties. At that time, after holding hearings, Congress amended Medicaid law to require states to increase the look-back for transfers to three, and in some cases, five years. The 1993 law also required states to increase the penalty for such transfers to an indefinite period of ineligibility for Medicaid, depending on the amount given away without value. If Congress believes problems still exist, it should hold hearings to identify the problems and consider other civil, rather than criminal, penalties.

E. Conclusion

At this point, TCSG does not feel it can draw conclusions or provide answers as to how the aging network should deal with the criminalization of Medicaid asset transfers. There are many experts in law and aging who feel the new language is so poorly written and its meaning so unclear, that it cannot and will not be implemented. There are also rumors that there may be an effort, when Congress reconvenes after the election, to repeal the new provision entirely. We will try to stay current on any and all developments and will be happy to share that information with anyone who contacts us.

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1 Eleanor M. Crosby & Ira M. Leff, Ethical Considerations in Medicaid Estate Planning: An Analysis of the ABA Model Rules of Professional Conduct, 62 Fordham L. Rev. 1503 (1994).

2 Ira S. Wiesner, OBRA '93 and Medicaid: Asset Transfers, Trust Availability, and Estate Recovery Statutory Analysis in Context, 19 Nova L. Rev. 679, 695 (1995). Note that these asset transfer rules may be waived if the State determines that ineligibility for benefits would create an "undue hardship." Id. at 700; 42 U.S.C.A. 1396p(c)(2)(D) (West Supp. 1996). In addition, some transfers, such as to spouses, are exempt. 42 U.S.C. 1396p(c)(2) (West Supp. 1996).

3 Wiesner, supra note 2, at 695.

4 Id. at 697.

5 Id.

6 The National Senior Citizens Law Center may be contacted by writing or calling: 1815 H Street, N.W., Suite 700, Washington, DC 20006; Ph: (202) 887-5280; Fax: (202) 785-6792.

Legal Services Developers Hold 3rd Annual

The National Association of Legal Services Developers (NALSD) held its 3rd Annual Symposium in Saratoga Springs, NY, April 11-14, 1996. The Symposium gave Developers from all around the country a chance to discuss elder rights Symposium initiatives; learn how others are coordinating with legal providers and other advocates; learn how to improve working relationships with area agencies on aging, legal providers, and the private bar; and rethink the coming year's tasks and goals in light of recent changes to the Legal Services Corporation and anticipated changes to the Older Americans Act. Most significantly, NALSD and the National Association of State Ombudsman Programs (NASOP) held a joint training session for Developers and Ombudsman during an overlapping day of the NALSD and NASOP meetings. Both Developers and Ombudsmen learned how to identify and meet needs through collaboration between the legal services and ombudsman programs, and identified areas where increased coordination of effort and communication may have a significant impact on results achieved.

The 4th Annual NALSD Symposium will be in Austin, TX, April 17-20, 1996.

Elder Rights Advocates Mourn the Loss of Arthur Flemming

On September 7, 1996, this nation lost one of its most distinguished citizens and most dedicated civil servants -- Dr. Arthur S. Flemming. Throughout his 91 years, Dr. Flemming remained vitally interested and involved in the problems and issues of the less fortunate of the country. His spirit and courageous commitment to equal justice for all Americans were hallmarks of his life -- a life that was a true profile in courage.

While most of us know him in his various roles with the federal government, he also taught and served as President of three universities. Within the government, he accepted his first position in 1939 when Franklin D. Roosevelt appointed him as a Republican member on the Civil Service Commission. The scope of his operational theater as a government employee is vast, including serving as Secretary of Health, Education and Welfare under President Eisenhower, and Commissioner on Aging and Chair of the US Commission on Civil Rights under Presidents Nixon, Ford, and Carter. He was consulted personally by Presidents Kennedy, Johnson, and others. Recently, President Clinton relied heavily on Dr. Flemming as an emissary for health care reform and awarded him the Presidential Medal of Freedom, the highest civilian honor in this country.

Among the many words of praise and admiration by First Lady Hillary Rodham Clinton at the memorial service for Dr. Flemming on September 14, 1996, were the following:

Everyone who worked with Arthur Flemming was touched by his passion to try to help other people. . . . He was as relentless in trying to help his national community respond to those less fortunate than him as anyone who has ever graced this nation's capital.

These words capture both the essence of Arthur Flemming, and the traits that make his loss so devastating at this time in history. Now, more than ever, as fundamental values and programs are being questioned, we feel the need for his rare combination of wisdom, compassion, energy and his courage to champion the rights of all. Perhaps the greatest tribute we can pay him is to rise to the challenges he left us and build on his legacy.

Samuel Simmons Receives 1995 Arthur S. Flemming Award

As we stated in the previous issue of Best Practice Notes, a special highlight of the Joint Conference on Law & Aging (JCLA) each year is the Awards Luncheon, at which the Arthur S. Flemming Award and the Paul Lichterman Award are presented. In 1995, the Lichterman Award went to Wilma Salmon Legal Services Developer for Louisiana, and the Flemming Award to Samuel J. Simmons, President of the National Caucus and Center on Black Aged (NCBA). Below we pay tribute to Samuel Simmons, the Flemming Award recipient.

The Flemming Award was created in 1988 by the Sponsors of JCLA. Its purpose is to honor the late Dr. Arthur Flemming's contributions to the broad field of law, aging, and social policy; and to recognize the focus public appreciation on individuals like Dr. Flemming who, at the national level, have demonstrated outstanding commitment, accomplishments, personal vision, and creative use of law and public policy to enhance the lives of older persons throughout the country. Mr. Samuel Simmons is most deserving of this award.

Mr. Simmons is a quiet, serious and dedicated organizer and leader. He understands that change takes place only though conviction, dedication, systematic planning, perseverance, and a keen attention to detail. Using these skills, Mr. Simmons has served as President of NCBA since 1982, and has helped it to become the nation's major service and advocacy organization working on behalf of the Black elderly.

NCBA currently administers programs that provide employment to more than 2,000 low-income elderly in seventeen states and the District of Columbia, and has developed six housing projects, sheltering 369 low-income elderly families, and more importantly, empowering them. Through NCBA, Mr. Simmons has also striven to improve Supplemental Security Income (SSI) benefits levels for low-income elderly, and continues to be involved in health care reform. Mr. Simmons works every day to make adequate income and housing a reality for older African American men and women.

Immediately prior to joining NCBA, Mr. Simmons served as President of the National Center for Housing Management (NCHM), an organization created to provide leadership in meeting the nation's housing management training needs. Among the achievements of NCHM is the development of the only certification system for managers of housing for the elderly. From 1969 to 1972, Mr. Simmons served as Assistant Secretary for Equal Opportunity of the U.S. Dept. of Housing and Urban Development, where he was responsible for the administration of Federal Fair Housing Law and regulations. Previously, he served as Director of Field Operations for the U.S. Commission on Civil Rights, and in federal and state agencies concerned with the administration of labor relations and equal opportunity laws. These and his many other achievements have made Mr. Simmons truly worthy of this award. Congratulations!

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