Elder Law

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

State Materials 

Elder law is often tied closely to Medicaid regulations which have state-specific components.  This may increase the importance of state-specific materials in your research.  Consider using a secondary source in your jurisdiction.  Examples for Massachusetts include: 

One focus of elder law is obtaining public benefits for seniors in need of care. Consider the following programs:

Medicare

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

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)

Since Medicaid is administered by the states, program regulations can vary widely. The standard, however, is set by federal law. Medicaid plays a particularly important role in elder law. It is the primary payer of long-term care services in the United States.

Centers for Medicare and Medicaid Services

Federal Regulations for Medicare and Medicaid are promulgated by the Centers for Medicare and Medicaid Services (CMS). CMS is part of the Department of Health and Human Services (HHS). Relevant HHS regulations are codified at 42 CFR 400-505.

Elder law also focuses on planning for incapacity and death. This may include: 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. These instruments are governed by individual State Probate Courts.

The three major tax issues involved in elder law are estate taxes (including generation skipping tax), gift taxes, and capital gains taxes.

Relevant IRS Instructions and Forms

50 State Surveys

Older Americans Act

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

50 State Surveys

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. They also provide for social services to help the victim and ameliorate the abuse.

Increasingly, states are passing laws providing explicit criminal penalties for various forms of elder abuse. Even in jurisdictions without specific elder abuse laws, criminal penalties may be pursued. Offenders may be prosecuted under basic criminal laws, such as battery, assault, theft, fraud, rape, manslaughter, or murder. Some legislatures have enacted enhanced penalties for certain crimes against older persons.

The term “domestic abuse” is typically used to refer to abuse in the community. Whereas abuse in long-term care facilities may be referred to as "institutional abuse."

Long Term Care Ombudsman Program (LTCOP)

All jurisdictions have laws authorizing the Long Term Care Ombudsman Program (LTCOP). This program advocates on behalf of long term care facility residents who experience abuse or neglect, violations of their rights, or other problems. The LTCOP is a necessary condition of receiving federal funds under the Older Americans Act.

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

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