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A brief news item entitled “Bill would expand Aging department’s oversight” by Scott Gilbert, posted on July 16, 2009, by WITF (Harrisburg, PA), noted the proposed restructuring of the Pennsylvania Office of Long Term Living (OLTL) into the Pennsylvania Department of Aging (DoA)

All long-term living facilities, for seniors and younger people alike, may soon drop under one state agency.

The departments of Aging and Public Welfare currently share oversight of the Office of Long-Term Living. But the House has approved and sent on to the Senate a measure that would create the Department of Aging and Long-Term Living.

Crystal Lowe, who heads the Pennsylvania Association of Area Agencies on Aging, says the move makes sense.

Among the functions that would be shifted out of DPW is the licensing and regulation of personal-care homes and assisted-living facilities. Lowe says her group supports the legislation, provided the merger would not diminish the Aging department’s ability to advocate on issues unique to seniors.

The proposal was discussed at a meeting, held May 28, 2009, of the Medical Assistance Advisory Committee (MAAC) of the Pennsylvania Department of Public Welfare, when a resolution was adopted anticipating the organizational move of OLTL from DPW, to the DoA.

The Consumer Subcommittee made a motion that the Memorandum of Understanding formalize the role of the MAAC and the MAAC Subcommittees to continue to serve in an advisory capacity on the MA Programs that are moved to the Department of Aging and Long Term Living and that includes having someone come to the MAAC, not only to give reports, but to provide draft documents for comment and discussion for the MAAC to provide an advisory role independent of other committees.

It appears that the DoA anticipates receiving the prime role of addressing long-term care needs in Pennsylvania, as explored in its recent Summit held in State College.

A Press Release, entitled “PA Department of Aging Explores Needs of Older Adults at Senior Center Summit” (06/30/09), noted an information-gathering process that focused on the role of the existing senior centers statewide.

The Pennsylvania Department of Aging and the Long-Term Living Training Institute have heard wonderful insight from experts in the aging field and older adults during a two-day conference attended by over 300 professionals and consumers.

Pennsylvania has over 600 senior centers where older citizens go for support, camaraderie, meals and access to important information about programs that can help Them.

“Senior centers offer a lifeline for many older residents who otherwise would be isolated,” said Department of Aging Secretary John Michael Hall. “Pennsylvania seeks to improve programs and access to centers across the state and to find innovative ways to make them more appealing, efficient and nice for members.”

Discussion groups focused on the changing role of senior centers, fundraising techniques, creating a business plan and making the centers better places for older residents to go. Objectives of the meeting include improving ways to transport seniors to centers in rural and suburban areas and finding more and better ways to sustain operations in a cost-effective way.

The legislation that would accomplish the restructuring is PA House Bill 1152, presently in Printers No. 2212 (28 pages in PDF format), which is summarized simply as “An Act establishing the Department of Aging and Long-Term Living and providing for its powers and duties; and making related repeals.”

According to its Legislative History, HB 1152 was introduced on March 31, 2009, approved by the House on June 30th, and then was referred immediately, in the Senate, to its Aging & Youth Committee.

Very relevant to the discussion about regulation of personal care homes in Pennsylvania is Section 4’s empowerment that, among other missions, the proposed, newly-named “Department of Aging and Long-Term Living” shall administer and supervise a domiciliary care program for adults.

More specifically, under Subsection 9.1, the new DA/LTL shall: “License and regulate personal care homes and assisted living residences under all powers previously granted to the Department of Public Welfare as provided in Articles II and X of the act of June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code.”

The new DA/LTL would also handle programs for Pennsylvanians who are older or who have disabilities. Section 4, in Subsection 10, provides that it shall “[a]dminister and supervise an attendant care program for people with disabilities under the act of December Ten, 1986 (P.L.1477, No.150), known as the Attendant Care Services Act, and any related home and community-based services waiver for older adults and people with disabilities.”

The legislation also projects a sweeping vision for long-term living in Pennsylvania.

Section 4, Subsection 12, provides that the new DA/LTL shall:
In cooperation with the area agencies, Federal, State and local agencies that support people with disabilities and older adults, service providers, centers for independent living and support organizations, work toward the development of a continuum of home and community-based service, transportation and housing options for older adults and for people with disabilities designed to maintain them in the community and avoid or delay institutional care when clinically appropriate.

The department shall ensure that consumers are made aware of the availability of nursing facility services or other residential settings when identified as a clinically appropriate option.

System development activities shall include coordinating the Commonwealth’s plans for the provision, expansion and effective administration of all of the following:
(i) In-home services that recognize consumer choice, including personal assistance and supportive services, which shall include consumer-directed services.

(ii) Housing options such as service-enriched housing options, personal care homes and assisted living residences and nursing facility services, when clinically appropriate.

(iii) Special services to caregivers who support people with disabilities and older adults, recognizing the important role that families play in helping older adults and people with disabilities to live independently.

(iv) Adult every day living center services, respite services and other community-based services to support caregivers.

(v) The promotion of informal community supports.

(vi) Comprehensive and ongoing assessment programs.

(vii) Counseling programs to assist individuals in determining appropriate long-term living services.

(viii) Special advocacy efforts to promote greater awareness of, and more effective response to, Alzheimer’s disease and other related dementia.

(ix) Activities and services at community senior centers.

(x) Wellness and preventive health programs.
Although this may appear initially as an organizational shuffle, I think that it represents more.

This is a potential restatement by the legislative and executive branches as to who, in state government, will work in a coordinated effort on issues of older and disabled Pennsylvania citizens far into the future.

Neil E. Hendershot is a practicing & teaching lawyer in Harrisburg, Pennsylvania who works daily in the legal areas covered by the PA EE&F Law Blog

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Maine Seeks To Be The Tail Wagging The Dog

There have been prior efforts to regulate online marketing to children, such as the enactment by Congress of the Children’s Online Privacy Protection Behave (COPPA). But now along comes Maine, with its Behave To Prevent Predatory Marketing Practices Against Minors (the Maine Act), as the latest governmental crusader seeking to protect the rights of children against abusive marketing. Is this a positive development, with Maine seeking to be the governmental tail wagging the dog in this arena? Read on.

COPPA, which has been on the books for a decade, demands verifiable parental consent before Web sites may collect personal information from children under the age of 13 years old. The Maine Behave, which is scheduled to go into effect next month, goes farther in several respects.

• First, the Maine Behave applies generally to minors, which likely refers to anyone under the age of 18 years old.

• Second, the Maine Act not only regulates the potential collection of information online, but it also appears to govern other forms of information collection.

• Third, the Maine Behave applies generally to persons, whereas COPPA specifically targets Web site operators. A person is broadly defined under the Maine Act as “an individual, firm, partnership, corporation, association, syndicate, organization, society, business, trust, attorney-in-fact and every natural or artificial legal entity.”

• Fourth, and significantly, the Maine Act, different than COPPA, allows for significant fines and private causes of action with the potential for lawyer’s fees.

The Maine Behave prohibits predatory marketing against minors as follows: “A person may not use any health-related information or personal information regarding a minor for the purpose of marketing a product or service to that minor or promoting any course of action for the minor relating to a product.” This appears to be a flat prohibition that cannot be cured even with parental consent.

As far as the unlawful collection and use of health-related data from minors, the Maine Behave provides: “It is unlawful for a person to knowingly collect or receive health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent from that minor’s parent or legal guardian.”

For purposes of the Maine Behave, personal information refers to an individual’s first name or first initial and last name, a home other physical address, a social security number, a driver’s license number or state identification card number, and information concerning a minor that’s collected in combination with one of the foregoing identifiers.

Health-related information refers to any information about an individual or a member of the individual’s family relating to health, nutrition, drug or medication use, physical or bodily condition, mental health, medical history, medical insurance coverage or claims or similar data.

Bottom line, is the Maine Act a positive development?

While the goal of preventing predatory marketing practices toward minors is laudable, this approach appears to have some flaws.

One such flaw is that marketing, especially online marketing, is not necessarily confined by state boundaries. It is natural that emails cross state lines. Indeed, when mass emails are sent (hopefully, complying with the Can-Spam Behave), the email senders don’t necessarily know where the email recipients on their lists live; it is safe to say that email lists include recipients from various states. Furthermore, Web sites are viewable nationwide (indeed, worldwide), and they aren’t available only in a specific state.

Should Maine, just one small state out of 50, be able to force the issue of compliance practices for national marketers? This likely should be addressed at the federal level to achieve national uniformity. While it may or may not be that some of Maine’s ideas may ultimately deserve national consensus, that may not be for Maine alone to decide.

Furthermore, Maine’s strict prohibitions may not be perceived favorably on reflection even among minors within Maine’s borders. For example, for users over 13, Facebook reportedly uses personal information for the offering of services. Under the Maine regime, those services may become unavailable to Maine’s minors.

Perhaps also Maine minors no longer would receive marketing information they may deem worthy, such as information relating to test taking services, athletics endeavors, and job opportunities. The point is that Maine minors may not perceive all marketing to Them as truly predatory.

It will be interesting to see how the Maine experiment plays out. Will it lead to laws in other states? Will it lead to federal legislation? Will it cause a backlash within Maine’s own borders. Stay tuned.

FindLaw columnist Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes.  His Website is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.  To receive a weekly email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line. 

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
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| By Paul Cherner

 
President Obama has nominated Jacqueline A. Berrien to be Chair of the Equal Employment Opportunity Commission. Ms. Berrien has been associate director-counsel of the NAACP Legal Defense and Educational Fund for the past five years. She previously worked for the Ford Foundation and the American Civil Liberties Union.

 There appears to be a compromise gathering consensus concerning the enactment of the Employee No cost Choice Behave (”EFCA”). See our prior post for a description of the key provisions of this proposed legislation. The compromise that is emerging will be to drop the card check recognition provisions in favor of quick union elections (five to ten days) to be conducted by the NLRB. Left in the bill for now are the provisons providing for arbitration of first time union contracts and increased penalties for unfair labor practices committed during organizing drives and/or first contract discussions. It is predicted that the Senate will probably not deal with this legislation until September at the earliest.

Paul Cherner is a labor and employment attorney in Chicago, IL. Visit his blog at http://hrcounselblog.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

Within the past few days, major media — the Philadelphia Inquirer and ABC News — published accounts about Pennsylvania’s filial responsibility law, drawing attention to the desperation caused in some families in the Commonwealth who are compelled to support their parents’ costly care needs despite their disconnection or their best efforts.

The Inquirer, from Philadelphia, published its article, “If mom can’t pay, adult child must”, by Monica Yant Kinne, on Sunday, July 12, 2009; and ABC News, from New York City, published its article, “Pay Your Parents’ Bills or Else — Little-Known State Laws Force Some to Pay Their Parents’ Nursing Home Bills” by Alice Gomstyn, on Wednesday, July 15, 2009.

The Inquirer article said the story of Don Grant, of Havertown, Pennsylvania, who was sued for care costs incurred by his mother:
This one’s going to blow baby boomers’ minds. It concerns a little-known law dating to Elizabethan England suddenly being enforced with gusto in Pennsylvania. The law can force adult children to pay their parents’ health-care costs. If Mom and Pop can’t pay, you pay. If they have the money but refuse to pay, you pay.

If you don’t, watch your credit rating sink under the weight of a legal judgment that will haunt you for life.

It happened to Don Grant. It can happen to you.

The Havertown man is nearly Fifty and struggling to pay his mortgage and $100,000 in student loans incurred by his daughter, a recent Albright College grad.

Last year, Grant was sued because his mother, Diana Fichera, did not pay an $8,000 bill at a Delaware County nursing home, where she rehabilitated after surgery.* * *
Don Grant’s mother was disassociated from him, and incurred substantial bills at care facilities. However, one care facility utilized Act 43 (recodified in Pennsylvania law in 2005), as a legal ground to sue him as her responsible family member.

The ABC News article told the story of Andrea August, of Norristown, Pennsylvania, who was also sued for care costs incurred for her mother:
Could you be sued for your parents’ unpaid health care bills? It happened to Andrea August.

One spring day, the 39-year-old Pennsylvania woman was stunned to learn that a nursing home was suing her for more than $300,000 in unpaid bills related to her father, who died after spending about a year in the home, and her mother, a dementia patient still living there.

“I was devastated,” August said. “We’re living basically paycheck to paycheck. We don’t try to live beyond our means — it was just unbelievable that all of a sudden there was this debt hanging over us.”

August said that both she and her husband work two positions each to make ends meet for themselves and their two children. She loves her parents, she said, and did what she could to help them. But footing their bills was out of the question.

“I don’t think anybody should be responsible for someone else’s bill,” she told. “You can only do so much.”

August discovered herself among a growing number of adult children facing legal pressure to pay their parents’ medical bills. * * *
Both articles deliver excellent reviews about the “filial support” concept, which derived from English law in the 1600s, was transported into Colonial laws, but fell into disfavor and disuse with the introduction of the federal Medicare and Medicaid systems in the mid-sixties.

Both articles note how the precarious financial situations of care facilities and the funding problems of the federal systems now lead providers to invoke those prior laws, particularly in Pennsylvania, due to the 2005 reenactment, which followed issuance of a Superior Court decision in Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super. 2003).

Elder law attorneys have known about, and have opposed, the impact of Behave 43 since its reenactment in 2005 into Pennsylvania’s Domestic Relations Code, 23 Pa.C.S.A. § 4603 regarding “Relatives’ liability” (unofficial form) and its supporting Regulations (”Actions for Support”).

I noted the problems that a spotty enforcement of such a law could create for families, and provided further references. See: PA EE&F Law Blog post “Filial Support” in PA? Really?!? (07/28/08). See also: “Should you worry about your parents’ debts?” by Liz Pulliam Weston, posted on MSN Money; and “Paying for Mom: Little-Known Laws Force Families to Fund Parents’ Care” (01/10/09) by Beth Baker posted by the AARP Bulletin.

My post quoted Professor Katherine C. Pearson, who is the Director of the Elder and Consumer Protection Clinic, of Penn State - Dickinson School of Law, and who now is Chair of the Elder Law Section of the Pennsylvania Bar Association.

She was quoted in both the Inquirer and ABC News articles, too.

These articles appear just as federal health care insurance proposals air nationally. Such reform should take in account remaining state filial responsibility laws, and address, at minimum, the procedural rights that should be afforded to those being charged with care costs of family members.

However, until the situation of “filial responsibility” is clarified — particularly in Pennsylvania — anyone receiving an Behave 43 demand from a care facility regarding costs incurred by a family member must be vigilant. Never brush off such a demand, or else you run the risk of becoming the star of another article about filial responsibility.

Neil E. Hendershot is a practicing & teaching lawyer in Harrisburg, Pennsylvania who works every day in the legal areas covered by the PA EE&F Law Blog.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

 FindLaw columnist Eric Sinrod writes regularly in this section about legal developments surrounding technology and the internet.

Lest you think the FTC is sitting back and letting rogue Internet Service Providers run wild in cyberspace, please consider the FTC’s recent shutdown of Pricewert LLC.

According to the FTC, Pricewert knowingly hosted and actively participated in the distribution of spam, child pornography, and other harmful electronic content.
Pricewert, as alleged by the FTC, was doing business under various names, including 3FN and APS Telecom, and actively recruited and colluded with criminals who sought to distribute child pornography, spyware, viruses, Trojan horses, phishing, botnet command and control servers, and pornography displaying violence, bestiality and incest.

The FTC asserted that Pricewert advertised its services “in the darkest corners of the Internet,” which included a forum for communications between criminals.

The FTC further alleged that Pricewert’s use of botnets (large computer networks that have been compromised and enslaved by a “bot herder” and that can be used for the sending of spam and the launching of denial of service attacks) included the control of more than 4,500 malicious software programs hosted by 3FN. This malware is asserted to have included programs capable of keystroke logging, password stealing, data stealing, programs with hidden backdoor remote control activity, and spam distribution programs.

The FTC filed a recent lawsuit in federal court in San Jose, California and charged that Pricewert’s distribution of illegal, malicious and harmful content and the deployment of botnets had compromised thousands of computers already and had caused substantial injuries to consumers.

The FTC promptly moved for a temporary restraining order, which was granted by the court. As a result, Pricewert’s alleged illegal activities are prohibited, at least for now, and its upstream Internet providers and data centers are required to cease providing services to Pricewert. Moreover, Pricewert’s assets have been frozen.

The case is not over, and Pricewert will have a chance to fully provide its factual version of events in support of its defense. But this case should serve as notice that the FTC can and will flex its muscles when it believes that serious wrongdoing is occurring in cyberspace.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Website is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

The Family and Medical Leave Act (”FMLA”) was amended last year to provide for 2 new forms of leave for eligible employees who have a family member on active duty in the armed forces. These amendments afford eligible employees the opportunity to take “military caregiver leave” to care for covered service members. The other form of leave provided is “qualifying exigency leave” for any qualifying event that arises from a family member being called to active duty or receiving notice of an impending call to active duty status.

The U.S. Department of Labor has issued detailed regulations implementing these two new forms of leave for employers with Fifty or more employees. Employers are required to update their FMLA policies, post revised FMLA notices and provide for those two new additional forms of leave for their eligible employees. For an indepth discussion of those new forms of leaves, see this author’s article “Leave for Military Family Members - What Employers Have to Know” in this week’s online version of Crain’s Workforce Management and the December 10, 2008 post in this blog..

Paul Cherner is a labor and employment lawyer in Chicago, IL. Visit his blog at http://hrcounselblog.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

Neil E. Hendershot is a practicing & teaching lawyer in Harrisburg, Pennsylvania who works every single day in the legal areas covered by the PA EE&F Law Blog.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

By Eric Sinrod

Google’s Street View panoramic photo mapping service allows users to see street level photographs of specific locations, to take virtual walks while panning, rotating and zooming through cities around the world, and to discover shops, restaurants, parks, hotels and other spots in given geographic locations. Nice, right?

Well, not so fast. According to a recent New York Times article, a German data protection official has just threatened Google with “unspecified sanctions” if Google does not conform its Street View service to comply with strict German privacy laws (on the supposed assumption that Google is not presently in compliance).

Google and Germany reportedly are in disagreement with respect to 12 different points relating to Street View. German law is reported to prohibit the distribution of photographs of persons or their property without express consent.

The heart of the controversy involves photographs of houses and intimate property without permission and the handling of recorded data that later is removed from Street View subsequent to property owner complaints, according to the article.

Data protection administrators from a number of German states reportedly have objected to Google’s Street View service. Indeed, the article states that in the city of Kiel, residents put stickers on their front doors last year telling Google not to film their property.

Since 2008, Google reportedly has been putting together a photographic inventory of German streets for Street View, which has been available in various countries, but has not yet been launched in Germany.

The article indicates that Google is willing to allow Germans the right to opt out online of Street View filming, and they can seek to have Street View remove pics of their property that have been posted.

So, where is the privacy line when it comes to photographs of the real property?

On the one hand, a building on a street often is in public view, and arguably is not terribly intimate. On the other hand, it’s one thing for a finite number of people to be able to view the building as they might see it from the street, but it is another matter for people from all over the world to see that building online.

Also, while “opt-out” generally is the privacy regime in the United States (meaning that people have to opt-out affirmatively to prevent the sharing of their private information), in Europe, opt-in is the rule (meaning that consent must be obtained up-front before private information can be made available). Thus, what might fly in the US, might not go over so well in the European Union.

No matter what happens with respect to this particular dispute, there is no question that the world is becoming a much smaller place.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

 

By Paul Cherner

 

President Obama has announced his intention to nominate 2 union attorneys to be Board members of the NLRB.  They are Craig Becker and Mark G. Pearce.

 

Becker has been Associate General Counsel for the Service Employees International Union for 17 years and holds the same position at the AFL-CIO.  He has practiced and taught labor law for 27 years.

 

Pearce practices labor law at a legal firm in Buffalo, NY that represents unions and individual employees.  He previously taught labor law and began his career at the NLRB.

 

The NLRB has a total of five Board Members.  Traditionally, the President appoints three Members from his party to the staggered terms of the NLRB and designates one of ‘em to be Chairman.  The 2 other Board Members are traditionally from the opposition party.  At the present time, there are 2 Board Members serving on the NLRB who were appointed during the prior administration- Chairman Liebman (D) and Member Schaumber (R).   If these two new appointments by President Obama are confirmed by the Senate,  there will be a Democratic majority for the first time in many years.

 

 

Paul Cherner is a labor and employment attorney in Chicago, IL. Visit his blog at http://hrcounselblog.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

 

By Paul Cherner

 

President Obama has announced his intention to nominate 2 union lawyers to be Board members of the NLRB.  They are Craig Becker and Mark G. Pearce.

 

Becker has been Associate General Counsel for the Service Employees International Union for 17 years and holds the same position at the AFL-CIO.  He has practiced and taught labor law for 27 years.

 

Pearce practices labor law at a legal firm in Buffalo, NY that represents unions and individual employees.  He previously taught labor law and began his career at the NLRB.

 

The NLRB has a total of five Board Members.  Traditionally, the President appoints three Members from his party to the staggered terms of the NLRB and designates one of them to be Chairman.  The 2 other Board Members are traditionally from the opposition party.  At the present time, there are two Board Members serving on the NLRB who were appointed during the prior administration- Chairman Liebman (D) and Member Schaumber (R).   If these two new appointments by President Obama are confirmed by the Senate,  there will be a Democratic majority for the first time in many years.

 

 

Paul Cherner is a labor and employment lawyer in Chicago, IL. Visit his blog at http://hrcounselblog.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved