Volume 6     Number 1    1998    

Elder Law Journal Lecture: Seniors and Minorities in America - Paul Simon

This is an edited version of an address by former U.S. Senator Paul Simon and now Professor Simon, that was sponsored by The Elder Law Journal and the Black Law Students Association of the University of Illinois College of Law. The goal in preparing this memorial was to present in literary format the essence of the address and the question and answer period that followed. Accordingly, transitional matter and extraneous colloquy have been omitted. Aadditionaally , the substantive baasis of the address has been tailored to our publication's focus in that questions during the question and answer session which did not pertain to elder law have been omitted. Such ommission have not been identified by ellipses or other punctuation marks.

Patient Dumping: Implications for the Elderly - George P. Smith, II

Before 1986, the common law provided that doctors and hospitals had no duty to admit or treat persons who sought their care except in limited circumstances. Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) to curb this so-called patient-dumping problem. EMTALA provides that Medicare-participating hospitals must treat all patients who arrive in emergency conditions.

Professor Smith first discusses the patient-dumping problem and how EMTALA has provoked many hospitals to curtail their emergency facilities to avoid treating indigent and uninsured patients. He discusses the specifics of EMTALA's main statutory provision, 1395, and then focuses on EMTALA's particular impact on indigent elderly persons who have neither insurance nor Medicare. The author explains how EMTALA may indirectly encourage hospitals to dump elderly patients who do not have Medicare. Next, Professor Smith argues that EMTALA's definitional flaws and weak enforcement mechanisms make it an ineffective statute and suggests several ways of strengthening its effectiveness. Last, the author examines society's ethical obligations to treat its elderly citizens and suggests that doctors have an affirmative obligation to treat indigent elderly patients as a condition to their licensure.

 ARTICLES

Age Discrimination in Employment and the Americans with Disabilities Act: "A Second Bite at the Apple" - Constance Kleiner Hood

The Age Discrimination in Employment Act (ADEA) prohibits an employer from discriminating against an older employee because of that employee's age, except where age constitutes a "bona fide occupational qualification" (BFOQ). The ADEA also permits an employer to consider reasonable health factors in its employment decision. Many older employees have lost age discrimination suits where employers have persuaded courts that good health was necessary for the job and that age-based employment decisions were justified because older employees were less healthy than younger employees. However, since Congress enacted the Americans with Disabilities Act ( ADA ), an employer has been required to make reasonable accommodations for disabled persons. Ms. Hood considers whether the ADA would make a difference in these types of age discrimination cases. Ms. Hood argues that the ADA can help an employee who faces age discrimination when the employer uses age to approximate an employee's health status. She first discusses the history of the ADA and the Supreme Court's narrow construction of BFOQ. She then discusses the ADEA's definition of a disabled person and its requirement that employers make reasonable accommodations for disabled persons. Ms. Hood points out that although disability may correlate with age, the ADA itself specifically prohibits age from being considered a disability in itself. Next, Professor Hood explains the evidentiary framework used for employment discrimination cases and examines scenarios where a court does, and where a court does not, permit age to be used as a proxy for health. She concludes that in both scenarios a BFOQ would likely not survive an ADA challenge. Last, Ms. Hood compares the procedures for a person bringing both ADA and ADEA claims, determines when an employee can file both claims simultaneously, and discusses the available remedies.

Recent Changes in Medicare Managed Care: A Step Backwards for Consumers? - Karen Visocan

Medicare, the largest payer of health care costs for individuals over sixty- five, has recently taken steps backward in the consumer protection arena. In this article, Karen Visocan outlines the inherent conflict between Medicare and managed care. Ms. Visocan details the inadequacy of the Medicare appeals process which further exacerbates the managed-care conflict. She then examines how these realities have led participants to challenge Medicare processes and procedures. She points out that although participants have been successful in securing consumer protections in recent court battles, Congress has failed to incorporate similar protections into recent federal legislation governing appeals processes, hearings, and review procedures. Ms. Visocan also outlines a new, recently introduced Medicare program which also fails to incorporate consumer protections. Throughout this article, she emphasizes how the complicated nature of Medicare and the consistent lack of consumer protection imperils our senior citizens. In conclusion, Ms. Visocan calls for the rigorous examination and public debate of both new and existing Medicare programs by senior advocates so that participants will be informed as to the full extent of benefits to which they are entitled. Medicare is the largest public payer of health care services and supplies for Americans. Created by Congress in 1965, the program now covers roughly thirty-eight million Americans: thirty-three million age sixty- five and over, and about five million disabled persons under the age of sixty- five. Considering the population which Medicare serves, a consumer- friendly system should be a goal for the Medicare program. However, recent changes in the Medicare program, including the increased enrollment in Medicare Health Maintenance Organizations (HMOs) and the upcoming Medicare Choice options, have made the Medicare program a web of confusing options, provider restrictions, and benefit changes, the extent of which has not been seen by senior citizens in the past. In fact, despite some recent consumer victories in the Medicare arena, consumer protections in the Medicare program have taken a step backwards in the past year.

NOTES

Revamping the Phantom Protections for the Vulnerable Elderly: Section 3Al.l(b), New Hope for Old Victims - Trent M. Murch

As the baby boom generation begins to gray, an increasing number of seniors fall prey to those depraved criminals who seek to exploit the elderly segment of our society. Recognizing this plight, Congress has sought to afford greater protection to the elderly by amending the Vulnerable Victim Sentence Enhancement of the United States Sentencing Guidelines. Despite the plain meaning of the amended guidelines, a myriad of courts have both misconstrued and misapplied the Sentencing Guidelines to the detriment of elderly victims. In his note, Mr. Murch analyzes the factors influencing elder victimization and discusses the role the Sentencing Guidelines play in combating such victimization. Mr. Murch further observes how the judiciary has neglected to apply the Sentencing Guidelines coherently and consistently. In an attempt to resolve this seeming inconsistency, the author embraces a literal interpretation of both S 3A1.1( b) and the amended Comments of the Sentencing Guidelines, resulting in the creation of a two-pronged test to determine whether a criminal's sentence should be enhanced.

Promises Made, Promises Broken: Securing Defined Benefit Pension Plan Income in the Wake of Employer Bankruptcy: Should We Rethink Priority Status for the Pension Benefit Guaranty Corporation? - Jill L. Uylaki

As the baby boom generation begins to contemplate retirement, the United States will find an increasing number of elderly Americans depending on sources other than their salary to maintain their standard of living. Sources show that many baby boomers have not saved enough for retirement and therefore will not be able to maintain a comfortable lifestyle without the assistance of employer-provided pensions. However, corporate bankruptcy may result in pension plan underfunding and employees will then need to turn to the Pension Benefit Guaranty Corporation to receive benefits. Ms. Uylaki proposes that Congress grant the Pension Benefit Guaranty Corporation (PBGC) lien priority status under the federal Bankruptcy Code. This will hold employers more financially accountable to employees and preclude them from shifting the burden of payment of promised benefits to the PBGC. Ms. Uylaki acknowledges the public policy concerns generated by granting priority status, but she asserts that if the priority claim does not exceed thirty percent of the aggregate net worth of the employer, the PBGC will not drastically constrain the employer's ability to reorganize. In addition, Ms. Uylaki argues that priority status will confer a multitude of benefits to both pension plan participants and to society.

The Face of Social Security in the Twenty-First Century: An Analysis of the Reform Proposals Offered by the Social Security Advisory Council - Rebecca E. Perrine Wade

The Social Security program was created in 1935. This program was developed to provide social insurance to retirees, surviving spouses, and disabled persons. For more than sixty years it has enabled Americans to retire with dignity. However, an unprecedented number of retirees will soon be participating in this program, which will threaten the very existence of the Social Security program. In 1994, the Secretary of Health and Human Services appointed a Social Security Advisory Council to evaluate this situation and propose a solution. The Council recently proposed three different reform plans. The plans range from conservative modifications to radical changes, and all three entail some form of investing in the private sector. Congress has yet to choose the plan that will reform Social Security. In this note, Ms. Rebecca Wade provides a detailed analysis of each reform plan. She discusses the economic and social impact of each proposal and considers how each plan could affect current and future retirees. She reveals that some elements of the proposed plans might sacrifice dignity and security in retirement for the potential economic yield of investments. Ms. Wade urges that policy makers choose the plan that best protects the original public policy concerns behind Social Security.