News

Legislation Affecting Elder Law Practice

As the legislative session progresses, many bills of interest to the Elder Law Section are on the move. Here is a list of notable legislation which has the potential to affect your practice area:
 
SB199/HB249 GOVERNMENT ORGANIZATION: Creates elder abuse task force.
 
Sponsors:
Sen. Briggs, Richard, Rep. Carr, Dale
 
Summary:
Creates elder abuse task force charged with examining the current state of financial elder abuse, determining its economic and human impact, and developing recommendations to address problems associated with financial exploitation of the elderly. The task force will consist of 12 members, appointed by the health and financial commissioners, speakers of the legislative houses, district attorney, and TBI, as well as representatives from health and banking associations. The task force will submit its findings and recommendations to the governor and the general assembly no later than January 15, 2021.
 
Senate Status:
02/01/19 - Referred to Senate Government Operations Committee.
 
House Status:
02/01/19 - Referred to House Public Health Subcommittee.

SB265/HB257 CRIMINAL LAW: Punishes specific offenses involving elderly adults.
 
Sponsors:
Sen. Roberts, Kerry, Rep. Littleton, Mary
 
Summary:
Orders that anyone who knowingly commits an offense against the elderly by using a communication device to obtain medical conditions, sending unsolicited medical supplies, and filing a claim of reimbursement through the state Medicare plan for the value of the supplies sent is punishable with a Class D felony.
 
Senate Status:
02/01/19 - Referred to Senate Judiciary Committee.
 
House Status:
02/01/19 - Referred to House Criminal Justice Subcommittee.

HB360 TRANSPORTATION VEHICLES: Vision exam for those 75 years or older seeking driver license.
 
Sponsor:
Rep. Cooper, Barbara
 
Summary:
Requires anyone aged 75 or older to pass a vision exam in person prior to renewal of license. Declares that in lieu of participation in the exam at the department, the applicant may undergo an exam by a licensed optometrist within 90 days prior to renewal. Authorizes persons with diagnosed impaired night vision to use night vision equipment without a driving-during-daytime-only restriction.
 
House Status:
01/31/19 - Introduced in the House

SB534/HB799: Offense of financial exploitation of an elderly or vulnerable person. Broadens the offense of financial exploitation of an elderly or vulnerable person to include the use of a telephone or other electronic or communication device to fraudulently or deceptively obtain or attempt to obtain money, property, or another thing of value from that person. Increases penalty for such offense.

SB711/HB686: Public guardianship for the elderly. Allows the executive director of the Tennessee Commission on Aging and Disability to request the district public guardian to serve as a conservator for disabled persons who are younger than sixty (60) years of age if certain criteria are met.

SB1039/HB909: Elderly Abuse and Vulnerable Adult Protection Act of 2019.
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TBA to Introduce Legal Document Generation

The TBA will soon launch a new subscription-based product for Tennessee lawyers — automated legal forms. The initiative will use HotDocs, a custom documentation generator that creates form templates and speeds up the preparation process based on client and case data. In order to provide this valuable resource to our members, we hope to obtain your comments and ideas on forms you deem beneficial for replication. With across-the-board participation, we can comprise a substantive, comprehensive database where subscribers will have access to forms submitted by all TBA sections. Please send suggestions and comments to TBA Membership Director Mindy Fulks.

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Man Unwittingly Targets Former FBI and CIA Director in Elderly Lottery Scam

A man who preyed on the elderly with a lottery scam picked the wrong target for his most recent ruse — a former director of the FBI and the CIA, the Washington Post reports. William H. Webster, who also served as a federal district and appeals court judge, received a call from the man claiming that he won $72 million and a new Mercedes Benz in the Mega Millions lottery, but that Webster must pay $50,000 in taxes and fees to receive the money. The caller went on to describe intimate details of Webster’s life, except perhaps the most important part – his illustrious career in law enforcement. Webster was able to aid the FBI in a reverse sting operation, leading to the arrest and conviction of the credulous conman which netted him almost six years in prison.

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Court Seeking Comments on Amendments to Rule 21

The Tennessee Supreme Court is seeking comments from judges, lawyers, bar associations and members of the public on proposed changes to Rule 21, which governs the rule for mandatory continuing legal education. The deadline for submitting written comments is April 12. Written comments should be emailed to appellatecourtclerk@tncourts.gov or mailed to James Hivner, Clerk, Re: Tennessee Supreme Court Rule 21 Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407.
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Office on Aging to Host Knoxville Legal Clinic on March 9

The Community Action Committee's Office on Aging will host a Free Legal Advice Clinic on March 9, 9 a.m. to noon at the Knoxville-Knox County CAC, located at the LT Ross Building, WATE reports. The Office on Aging Pro Bono Legal Service Clinic is sponsored by the Rise Above Crime program of the Office on Aging, and Legal Aid of East Tennessee along with the Knoxville Bar Association's Access to Justice Committee.
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February TBJ: Play Ball (in the Courtroom)!

Deliver that perfect closing pitch – on the baseball diamond if you must, but we’re talking about in the courtroom! Read this Step-by-Step Guide to Delivering the Perfect Closing Pitch, in our February issue. Also, take an inside look from two medical examiners about how a suicide determination is made. TBA President Jason Pannu addresses respecting judicial independence and the Rule of Law, and a new elder law column is introduced – “Older & Wiser,” with Kelly and Matt Frere. Read the full issue here.
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Turn Your Expertise into a 'Journal' Article

The Tennessee Bar Journal is accepting submissions for publication, so consider writing an article for the TBA’s monthly magazine. Articles should be of interest to Tennessee attorneys -- you could detail a new state law or a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Take a look at the writer’s guidelines, then write it and send it in!
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TBA Weekly Legislative Update

The Tennessee Senate and House of Representatives are back in session and are referring newly introduced bills to the appropriate committees, which are primarily holding organizational meetings this week. The deadline for filing all legislation is Feb. 6, so there will be a flood of bills introduced over the next two weeks. The TBA Governmental Affairs Team will be reviewing all bills and begin the process of forwarding the legislation affecting the practice of law to the appropriate Section Executive Councils for review and feedback. Stay tuned for more info.
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Federal Court Rules Against Job-Seeking Lawyer in Age Discrimination Suit

The 7th U.S. Circuit Court of Appeals ruled 8-4 this week that the Age Discrimination in Employment Act protects workers but not outside job applicants in suits for disparate-impact discrimination, the ABA Journal reports. The case stemmed from a 58-year-old lawyer who challenged an experience cap in a legal job ad, which asked for applicants with no more than seven years of relevant legal experience. The court's decision hedged on the interpretation of the word "individual" in context of the law, which the majority found “shows that Congress employed the term ‘any individual’ as a shorthand reference to someone with ‘status as an employee.’"
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Estate Planning & Probate Forum 2019

The 2019 Estate Planning & Probate Forum provides six hours of CLE, including an hour of dual credit. It will focus on timely, relevant topics to help you stay on top of trends affecting this area of law. Legislative updates and the ever-popular Clerk and Masters Panel will ensure that you leave with the knowledge necessary to advance your practice. Make a plan to join us on Feb. 22.

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Sexual Assault of Aging Victim Draws Attention to Elder Abuse

After reporting on the sexual assault of an 80-year-old woman in an unnamed Memphis nursing facility, WREG is providing information on signs and reporting of elder abuse. According to Sandy Bromley with the Shelby County Crime Victims Center and Rape Crisis Center, sexual assaults involving seniors are rare, however, family members should always be aware of suspicious injuries, bruises or unexplained maladies like urinary tract infections. The victim in this most recent case was taken to Methodist Hospital by family members after they noticed changes in her behavior, where the hospital performed a rape assessment and determined that she had been sexually assaulted. No charges have yet been filed regarding the incident.

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AG Slatery Defends Participation in ACA Lawsuit

Tennessee Attorney General Herbert Slatery is defending his participation in the lawsuit that led to a federal judge to rule the Affordable Care Act (ACA) as unconstitutional, saying “the Commerce Clause of our Constitution that, according to the court, prevents Congress from compelling Tennesseans to buy insurance, especially if they can't afford it or don't want it,” The Chattanooga Times Free Press reports. U.S. District Court Judge Reed O'Connor last December ruled in favor of the 19 Republican state attorneys general, who argued that the law was unconstitutional after the 2017 Tax Act eliminated penalties for adults without health insurance. The U.S. Supreme Court had previously upheld the mandate, saying it was constitutional because it fell under Congress's taxing power. State Democrats have blasted the ruling, warning of consequences for the 1.7 million Tennesseans with pre-existing health conditions and the quarter of a million people in the state who obtain their insurance coverage through the ACA.

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AARP Foundation Files Federal Class Action Suit Against Reverse Mortgage Provider

The AARP Foundation — through its litigating arm, AARP Foundation Litigation — has filed a class action lawsuit in federal court alleging that reverse mortgage provider Live Well Financial Inc. improperly paid the property taxes of customers with Home Equity Conversion Mortgages before the taxes were due, then demanded repayment out of homeowners’ personal funds under the threat of foreclosure. The complaint maintains that the company failed to provide the required notice to the mortgage holder regarding prepayment of taxes and in fact had no contractual or other legal authority to do so. Also named in the suit are Celink and Reverse Mortgage Funding LLC.

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BlueCross Removes Oxycontin as Covered Drug

Starting in 2019, BlueCross BlueShield of Tennessee (BCBST), the state’s largest health insurance provider, will no longer cover prescriptions for the opioid Oxycontin, The Daily Memphian reports. BCBST Chief Medical Officer said that the reasons for the change was because Oxycontin has become a “favorite” among abusers. The insurer is also enacting stricter requirements for other opioids, like additional authorizations and lowered daily maximum doses.
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Court Solicits Comments on Rule Change for Professional Privilege Tax Payments

The Tennessee Supreme Court is soliciting comments on a proposed rule change that would make delinquent professional privilege tax fees payable via an online portal and remove the requirement of a Privilege Tax Delinquency Notice to be sent via mail, requiring only an email notice. The deadline for submitting written comments is Feb. 4. Written comments may be emailed to appellatecourtclerk@tncourts.gov or mailed to James M. Hivner, Clerk, Re: Tenn. Sup. Ct. R. 9, section 26 Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, Tennessee 37219-1407.
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102-Year-Old Becomes World's Oldest Skydiver

A 102-year-old woman became the world's oldest skydiver this month, plummeting from 14,000 feet above Australia, according to Vice News. Irene O'Shea made the jump to raise money and draw attention to Motor Neurone Disease, an illness that claimed the life of her daughter. This isn’t the first time O’Shea thumbed her nose in the face of danger, previously skydiving on her 100th birthday. You can view the video of O’Shea’s most recent adventure using this link.

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Council on Aging Adds 2 Tennessee Benefits Enrollment Centers

The National Council on Aging has added 25 organizations to its Benefits Enrollment Centers (BECs), including two new locations in Tennessee, according to a press release on its website. The Blount County Community Action Agency in Maryville and the Knoxville-Knox County Community Action Committee have joined the network of enrollment centers, which aid low-income Medicare beneficiaries in seeking access to programs that assist with payments for health care, prescriptions, food and utilities, among other services. The organizations will receive grants to create or expand these programs. 

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CBO Offers Tips for Minimizing Impact of Spending Cuts on Medicare, Other Programs

A Congressional Budget Office report lists several proposals on how to reduce the federal deficit, including ways to minimize the impact on Medicare and Medicaid, Becker’s reports. One recommendation proposes an alternative to increasing the age eligibility from 65 to 67, instead slowing the process, increasing the age of eligibility by two months a year until it reaches 67 or increasing the age of eligibility in three-month increments. The report also proposes scaling back on bad debt payments by Medicare by reducing the percentage of allowable bad debt. 

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Woman Draws Attention to Guardianship Practices

A New York woman deemed incompetent after Adult Protective Services (APS) forcefully entered her apartment is bringing attention to national guardianship practices, The New York Times reports. Phyllis Funke — who is a former freelance journalist for The Times — holds a master’s degree from Columbia University, a pilot license and what she estimates as several hundred thousand dollars in investments, however, an APS caseworker and city psychiatrist determined that she was incapable of making her own decisions after she did not respond to court motions to evict her for hoarding, and determining she was malnourished and dehydrated. The city psychiatrist testified that she suffered from “unspecified bipolar and related disorder, hoarding disorder and unspecified personality disorder,” therefore was unable to manage her personal needs and property, or to understand the consequences of her hoarding. Her own psychiatrist, however, maintains that she is stable and “perfectly competent to handle all her affairs.”  Since being placed under guardianship, Funke has been billed $16,800 by her court-appointed lawyer; $3,437 by a court evaluator and $5,000 by her first temporary guardian. “I feel as if I have absolutely no rights at all in the country in which I was born, and therefore in the rest of the world,” said Funke. “It’s worse than incarceration. At least in prison, you have rights.”

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Join Us Today: LAW TECH

Today's the day! Discover the newest technology for your law practice and law office at this year's Law Tech Blast at the Tennessee Bar Center in Nashville!

The flexible open house format allows you to create your own schedule. You can attend CLE sessions, enter to win prizes, network with attendees, visit with sponsors and interact with speakers. Take as many or as few CLE hours as you need. Only those seeking to be awarded CLE Credit will be charged. The registration desk will be open all day, so you can come and go for the hours you need when it is convenient for you. Attendees can earn up to 6.5 hours of Dual CLE credit.

CLE TOPICS:
  • GDPR, Cloud and Technological Competency
  • The Bill and Phil Tech Show 2019: BEAT THE CLOCK
  • Best Practices: Information Security for Firms
  • Judicial Panel: Technology in the Courtroom
  • Know When to Hold 'Em
  • Digital Evidence – A Technical Life Raft for the Legal Mind
  • Make it Rain: Ethics Guidelines and Practice Essentials

ATTEND TO WIN: Attendees will have a chance to win prizes, including an iPad Pro. The tech prize drawing will be held at the 10:30 a.m. break. Must be present to win.

TAKE A LYFT: TBA has partnered with Lyft to offer attendees a discounted ride.

  • New to Lyft?: Get $5 off 2 rides at http://lyft.com/i/lawtech5 or download the app and enter code LAWTECH5
  • Already Have Lyft?: Save 10% off 2 rides to or from Law Tech Blast with code LAWTECH

THANK YOU TO OUR SPONSORS & EXHIBITORS:


 

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Give the Gift of TBA Membership

Give yourself (or a friend) the gift that keeps giving — one-year of unlimited access to professional development opportunities and a number of programs and services designed to help you become a better practitioner. Founded in 1881, the Tennessee Bar Association is dedicated to enhancing fellowship among members of the state's legal community. Oh, and did we mention some of the benefits? Earn three pre-paid credits to use on any live or online course featured in the 12-days of CLE. Join now!

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Elder Law Basics Programming Now Available Online

Several videos from this year’s Elder Law Basics program are now available to purchase on the Tennessee Bar Association website. Topics for these videos include:
 
These online programs offer an opportunity for you to brush up on essential issues related to the practice while allowing the flexibility to work around your busy schedule in the last-minute rush for CLE credit. You can view other upcoming programs and online video options on our CLE webpage.
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American Airlines: Video Footage Proves Elderly Woman Was Not Abandoned

American Airlines is fighting back on allegations that they left an elderly patient with Parkinson's Disease unattended overnight in Chicago’s O’Hare Airport, USA Today reports. Olimpia Warsaw said that she was traveling with the airline last Friday to attend the funeral of her son's father and was left at the airport after her flight to Detroit was canceled. The airline says that it has video footage that contradicts Warsaw’s statement, showing that a family member picked her up from the terminal less than 45 minutes after she exited the plane. American says it is "deeply concerned about what occurred” and that its customer relations department has spoken with Warsaw's family "multiple times" and refunded her ticket.

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Centers for Medicare and Medicaid Services Releases Audit on Medicare Advantage

An audit recently released by the Centers for Medicare and Medicaid Services (CMS) found that nearly half of the Medicare Advantage plans reviewed by the organization had at least one error in the health provider directories used by patients to find a doctor, The Washington Post reports. Some of the errors cited include listing the wrong location or contact information for providers and errantly indicating that certain providers are accepting new patients when they are not. These blunders can have serious ramifications for those choosing the option. An out-of-date directory could lead a senior to choose a particular plan, only to later find out their doctor is out-of-network and that they must find a new one. According to the Post, this is the third time that the agency has cited Medicare Advantage, with CMS threatening to impose fines regarding similar inaccuracies just last year.  

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IRS Proposal Protects Large Gifts from Estate Tax

The IRS last week issued a proposal to suspend the estate tax on large gifts made between 2018 and 2025 that are currently exempt from the gift tax, Bloomberg reports. The proposed regulations are intended to protect those who made large gifts during a period when higher exclusion amounts applied. The IRS has scheduled a public hearing on March 19, 2019, to solicit input on the proposal. Comments can also be sent electronically via the Federal eRulemaking portal at http://www.regulations.gov (IRS REG-106706-18), or by mail at CC:PA:LPD:PR (REG-106706-18), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044.
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