2008 September - October

Transportation systems in the United States are unprepared for the precipitous growth of the nondriving elderly population. Aging baby boomers, combined with the increased incidence of disability in old age, heighten the need for appropriate transportation services for both rural and urban areas. To call for transportation services for the elderly, advocates must be knowledgeable about transportation options and gaps, barriers to the provision of services, and opportunities for social and policy change through community involvement.

Rising home values have resulted in more opportunities for scam artists to strip equity from the hands of unsuspecting homeowners. The elderly have proven to be particularly susceptible to tactics such as predatory lending, foreclosure rescue scams, and estate planning schemes, often leading to a loss of equity and possibly the home itself. Advocates can protect the homes and home equity of seniors by employing a range of legal and litigation strategies.

The federal Fair Housing Act protects the housing rights of seniors with disabilities; the Act covers such seniors who reside in assisted-living facilities. However, too often the Act is overlooked mainly because--assisted-living facilities being regulated by state law--advocates, assisted-living providers, and residents look only to state law for guidance. The Fair Housing Act can be a powerful tool and should be one of the first places to look to uphold the housing rights of senior clients with disabilities.

Individuals (especially older adults) with cognitive impairments often find barriers to exercising their right to vote. State laws requiring a level of mental capacity may erroneously prevent voters from exercising their franchise. State photo identification laws present a hurdle too difficult for some to overcome. State and local election officials and nursing homes may also sometimes mistakenly prevent capable adults from voting. The increased attention to voting by people with cognitive impairments has created opportunities to eliminate inappropriate laws and practices. Strategies to change law and policy may reenfranchise these voters.

Dementia is an increasingly common diagnosis among residents of long-term care facilities, but staff is often ill-equipped to serve these residents. Too often unresolved behavioral problems that setm from dementia cause nursing homes to discharge residents against their will. To avoid this outcome, advocates should strive to ensure that residents with dementia receive the individualized rehabilitative services to which they are entitled.

Power-of-attorney documents are popular among the elderly for end-of-life planning. Powers of attorney are easy and inexpensive to prepare and do not require an attorney. However, financial abuse of the elderly by people who serve as agents under powers of attorney is a growing problem. By the time many elderly victims seek help from an attorney, they are already in dire financial straits. Advocates need to be ever more aware of this area of the law and develop strategies not only to remedy this kind of abuse but also to prevent it.

Growing numbers of limited-English-proficient senior citizens frequently encounter language barriers when attempting to access government services and programs. Older people have a number of language-access rights under both federal and state law as well as under legal services program policies. Advocates should be aware of these rights and specific language-access problems related to the largest government agency regularly used by the elderly: the Social Security Administration.

Now and in the future, increasing numbers of old people do not and will not fit the stereotype of contented old folks in their rocking chairs on the porch and need and will need dedicated lawyers to help secure the comfortable and dignified old age that everyone deserves. Understanding their demographics and trends in areas such as income, housing, long-term care, medical benefit programs, diminished capacity, and technological advances gives legal aid advocates a strong basis for assisting the growing population of older clients needing legal assistance.

Ensuring access to long-term care services in community-based rather than in institutional settings is a goal of many advocates and aging clients. The “aging and disability resource centers” that are emerging nationwide are vital in accomplishing this goal. These centers can offer single points of entry for consumer information on long-term care.

Illegal Conversion of Project-Based Section 8 Property Resolved by Innovative Settlement

Federal preemption of state Medicaid and Medicare laws has enabled beneficiaries to invalidate state laws restricting Medicaid benefits but has prevented enforcement of progressive state consumer protection statutes in the Medicare context. Some punitive state Medicaid laws can be overturned; however, the 2002 Supreme Court decision in Gonzaga University v. Doe has made it harder to withstand motions to dismiss. Advocates are using federal preemption as an alternative means of bringing claims under the Medicaid statute, but this raises issues of which advocates must be aware also. Staying up-to-date on changes in Medicaid and Medicare laws is necessary to make the best litigation decisions for clients.

Denials of admission to and eviction from assisted-living and nursing homes are likely to increase as more people become eligible for housing with services. When the loss of housing results from wrongful discrimination, advocates may rely upon the Fair Housing Act as a remedy for their clients. Understanding the applicability of the Act and possible disparate treatment and reasonable accommodation claims, as well as the Act’s interaction with state law, is critical for advocates seeking to obtain or protect housing with services for vulnerable adults.

Since 2003, enrollment of so-called dual eligibles—individuals eligible for both Medicare and Medicaid—in Medicare Advantage plans has burgeoned to one million. Little formal study has been done regarding whether dual eligibles benefit from using Medicare Advantage plans. However, the failure of Medicare Advantage to coordinate with Medicaid in providing benefits, cost sharing, and appeals processes calls into question whether dual eligibles actually derive benefit from Medicare Advantage plans. For some dual eligibles, enrollment in an MA plan may result in increased out-of-pocket costs and decreased access to health care. Medicare Advantage plans for Special Need Populations in particular may not be all that advantageous.