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Elder Law

Elder Law Overview

Introduction

The field of elder law is relatively new, and unlike more well-established disciplines, it is constantly evolving due to updated health care regulations, changes in tax law, and shifts in the public perception of aging.

Other Guides of Interest

This field involves many other areas of law - here are links to other guides you may find helpful in your research:

Statutes and Regulations

Health Care Statutes and Regulations

The primary focus of elder law is obtaining public benefits for seniors in need of care through the following programs:

Medicare - a federal program available to most Americans over age 65 (42 U.S.C. 1395).  Medicare is made up of:

  • Part A - Hospital Coverage (42 U.S.C. 1395c - 1395i-5)
  • Part B - Supplementary Coverage - i.e. doctor's visits, ambulatory medicine (42 U.S.C. 1395j - 1395w-5)
  • Part C - Medicare+Choice - also known as Medicare Advantage or Medicare HMO - administered by private insurance companies (42 U.S.C. 1395w-21 - 1395w-29)
  • Part D - Voluntary Prescription Drug Benefit Program (42 U.S.C. 1395w-101 - 1395w-154)

Medicaid - a federal program administered by the states, which provides health insurance for low-income or otherwise vulnerable populations (42 U.S.C. 1396-1397).  In general coverage is available for:

  • Children (includes the CHIP program)
  • Non-Disabled Adults who meet income guidelines
  • Pregnant Women
  • Individuals with Disabilities
  • Seniors with low-incomes (may also be "dual eligibles" - enrolled in both Medicare and Medicaid)

Federal Regulations for Medicare and Medicaid are promulgated by the Centers for Medicare and Medicaid Services (CMS), which is part of the Department of Health and Human Services (HHS), and can be found at 42 CFR 400-505.  Since Medicaid is administered by the states, program regulations can vary widely (though within the standard set by federal law).

The primary payer of long-term care services in the United States is Medicaid, which is why it plays the primary role in elder law.

Uniform Probate Code

In addition to planning for long-term care costs during life, or the impact of estate taxes upon death, a primary focus of Elder Law is planning for incapacity and death.  Providing legal authority to another individual through an Advanced Care Directive (health care proxy or living will), a Durable Power of Attorney (for financial and legal transactions), and ultimately a Will and/or Trust, is under the jurisdiction of the individual State Probate Courts.

Elder Abuse Statutes

The Older Americans Act (42 U.S.C. 3001 et seq., as amended) provides definitions of elder abuse and authorizes the use of federal funds for the National Center on Elder Abuse and for certain elder abuse awareness and coordination activities in states and local communities.

All fifty states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands have enacted legislation authorizing the provision of adult protective services (APS) in cases of elder abuse. Generally, these APS laws establish a system for the reporting and investigation of elder abuse and for the provision of social services to help the victim and ameliorate the abuse either in the community ("domestic abuse") or in long-term care facilities ("institutional abuse").

Additionally, all jurisdictions have laws authorizing the Long Term Care Ombudsman Program (LTCOP), which is responsible for advocating on behalf of long term care facility residents who experience abuse or neglect, violations of their rights, or other problems. The LTCOP is mandated in each state as a condition of receiving federal funds under the Older Americans Act.

An increasing number of states are passing laws that provide explicit criminal penalties for various forms of elder abuse. Even if there is not a specific statute or provision authorizing criminal prosecution for elder abuse, a jurisdiction’s basic criminal laws (e.g., battery, assault, theft, fraud, rape, manslaughter, or murder) can be used to prosecute someone who has committed an act of abuse against an older person. Some legislatures have enacted enhanced penalties for certain crimes against older persons.

Databases, Journals, and Treatises

Treatises and Case Books

Since elder law is tied so closely to Medicaid regulations, much of the field is inherently state-specific.  There are several treatises and case books, however, in the library that can be helpful in academic research, as well as practice.

Journals & Law Reviews

Advocacy Groups and Bar Organizations

Blogs

Getting Help

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