Our course in Elder Care Law will examine all the legal issues involved with growing older in America. Statistics compiled by the U. S. Census Bureau, as well as other research organizations; inform us that we are living longer. Indeed, the average age of longevity has gone up again this year. At the present time, provided all other health issues are equal, we are more than likely to anticipate that we can live well into our 80’s. In Bergen County, New Jersey, where the population is approximately 900,000, there are more than 133,000 citizens 65 years of age or older.
One of the fastest, rising parts of the population are those who are 85 years of age or older. Many of the northern suburbs are “graying”. Census data informs us also that in Bergen County, where the median age in 1980 was 35 years of age, the current median age is now 41. The fact that we are living longer means that we have the ability to enjoy life and contribute to society for a much longer period, but it also means that we have the greater need for continued quality healthcare.
Older Americans, if we take the 62 years of age or older as the measuring line, have become a considerable voting or pressure bloc. Politicians court the so-called senior citizen vote and employers are often looking for seniors in the workforce as more reliable and less expensive workers. The size of this group is also evident by the high amount of advertising on the video and print media aimed at older Americans. While we often carelessly group people into classifications such as senior citizens, there is not necessarily a monolithic senior view on any particular issue.
However, the law recognizes older Americans as a category of the population which needs special protections, special benefits and special care. Our course will examine the legal implications of growing old in America. Over these ten weeks, we shall examine the issues involving benefits, healthcare, discrimination, and employment, among others. We will examine legislative enactments and court decisions as we try to gain a greater understanding of the laws that govern the elderly in America. Accordingly, we should start with an understanding of legal and judicial system.
A brief overview of some of the major statutory laws dealing with older people are Americans with Disabilities Act (ADA), the Age Discrimination Act (ADEA), the Civil Rights Act of 1964, New Jersey’s Anti-Discrimination Law (NJLAD), and of course the various Titles of the Social Security Act, creating old age benefits and the Medicare Program. The most recent Congressional enactment for the elderly was the 2003 Medicare prescription drug program. Presently, Congress is debating a national healthcare plan, which may or may not have implications for the elderly. Obviously this debate will continue to be monitored.
As this class concerns itself with the law, let’s start with a definition. A law is a system of rules passed by an authoritative body and enforced through judicial institutions. Laws also serve as the rules governing conduct between peoples. The law performs certain functions in society: -Law is considered a command -Laws are the principles and rules applied by the courts -Laws provide social control -Laws allow for justice There are two significant legal and constitutional issues that we will address throughout this course.
They are as follows: -Due process of law -Equal protection of law Due process means that we are entitled to a fair hearing before an appropriate judicial body involving any conflicts we have under the law. This right is granted to us under the 5th and 14th Amendment of the U. S. Constitution and is also contained in the New Jersey Constitution. The equal protection means that all people are to be treated equally and consistently under the law. However, the courts have recognized and interpreted this to mean that all people within classifications are to be treated equally, hence the special legislation and judicial decisions concerning the elderly.
This protection is contained in the 14th Amendment. In addition, it is important to understand that the law also performs the following functions: -Defines the parameters of acceptable behavior practice -Imposes sanctions -Protects the social interests -Recognizes the importance of social justice -Extracts revenue from society to be redistributed in accordance to certain standards One of the key elements of the law is that is has sanctions to punish violations of its provisions.
As such, the law provides the following: -Statutory sanctions imposed for crimes -Sanctions used to force compliance with law -Sanctions for criminal conduct -Sanctions for breach of contract The sources of U. S. law are as follows:
1. Constitutions: Both the federal and state constitutions provide a framework for laws. They define certain rights, and laws must conform to the constitutions. 2. Legislation: The enactments of Congress and the State Legislatures are the most prolific sources of law. 3. Judicial decisions: The judiciary, the third branch of the government, is the final authority on the meaning of laws and constitutions.
Judicial decisions can set policy as well as establish law for future cases. 4. Precedents: In precedents, the procedures of law that were applied to one as situation will apply to the similar situation. In a legal context, this can be stated that previous court decisions should be applied for future decisions. 5. Executive pronouncements: An executive order can be found in state and federal government. Executive orders can be considered as a rule, regulation, or a policy issued by the executive, president or governor, to affect the executive branch of government as far as its operation or activities.
6. Administrative Rules: Rules having the force of law which are promulgated [created] by the governmental agencies, i. e. , FDA, FCC, etc. 7. Treaties: Treaties are agreements established under international law. The Legal System The legal system of the United States has its foundation in British law and tradition, dating back to our colonial times. This system is generally known as a common-law system, as the legal principles that have been derived are the result of the decisions down through the years enunciated by English judges.
Today in the United States much of those legal principles have been codified by legislative bodies at the federal and state levels. These bodies of law which have been codified are called statutory law. Legal disputes will eventually enter the judicial system and if not settled amicable by the parties, will be decided in a court room by a judge and/or jury. Our judicial system at both the federal and state levels is a three tiered system; starting with a trial level institution at the lowest level then proceeding to an appellate body and finally resting in a court of last resort (Supreme Court).
Our federal judicial system handling matters of violations of federal law or disputes between the residents of two or more states is created by Article III of the United States Constitution and subsequent legislation. The Constitution on Article III created the Supreme Court as the highest court in the nation and lesser courts as Congress may designate. The Congress subsequently did designate lesser federal courts in the Federal Judiciary Act and other enactments, so that today there are three levels to the federal judicial system which is the model for most of our states.
The federal trials between adversaries is held at the District Court level (New Jersey has three Federal District Courts, Newark, Trenton and Camden. ) Appeals from these trials can be taken to the second level, which is the Circuit Court of Appeals. The Circuit Court of Appeals for New Jersey sits in Philadelphia. Finally, a litigant may petition for their appeal to go to the Supreme Court, but that appeal is not a matter of right. New Jersey’s court system mirrors the three tier system of the federal system.
Our 1947 Constitution in Article III creates the New Jersey Supreme Court as the highest court in the state and creates with the modification of subsequent legislation the other levels of our court system. The trial level is called the Superior Court. Each county has a courthouse for the Superior Court Judges. It is here where cases involving negligence in a sporting event would be heard. A right of appeal exists for a disappointed litigant to the Appellate Division, the second level of the New Jersey court system.
Here the aggrieved the litigant does not retry the case, but rather argues from a transcript of the trial already held, that errors were made. If a litigant is still disappointed by an Appellate Division decision, he may petition the Supreme Court to hear that case. However, the Supreme Court has wide discretion in what cases it will hear and an appeal to the Supreme Court is not always a matter of right. The Superior Court system is divided into two divisions, criminal and civil. As our author points out in Chapter 1 of the text, legislative enactments involving the elderly are categorized under two headings:
1. Equality and Nondiscrimination 2. Special Needs and Preferential Treatment He then goes on to delineate specific federal statutory enactments under each category. Let’s take a look therefore at New Jersey’s approach, which is very similar. New Jersey’s major anti-discrimination statute is the New Jersey Law Against Discrimination (NJLAD) enacted in 1947, it predates the Federal Civil Rights Act of 1964 by 17 years. It prohibits discrimination against any person based on age, among other categories. New Jersey’s government at all levels reflects special needs and preferential treatment for the elderly.
At the state level there is the Department of Health and Senior Services. There is a corresponding office in county government known as the Office on Aging. In addition, many counties, including Bergen, maintain regional nutrition sites for seniors where they can gather, have a got meal, and socialize with their friends. Also, special housing projects for the elderly have been constructed under the guidance of county and community housing authorities, utilizing federal housing assistance. Many communities operate senior centers for their elderly residence.
Finally, seniors in New Jersey benefit from the establishment of casino gaming in Atlantic City. By state Constitutional Amendment, ratified by the voters, New Jersey’s tax on casino revenue goes into a dedicated fund primarily for the elderly. These revenues fund programs such as PAAD (pharmaceutical assistance), Life Line (utility bill assistance), transportation, and housing assistance. Hence, we can see that New Jersey has enacted significant programs targeted directly to the elderly. Our future classes will examine these federal and state initiatives more closely and concisely.