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  • International Practice Section Blog
    September
    23
    2019

    An International Snapshot: Protecting Seniors as Workforces Shrink

    Jamie Lumsden

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    Many countries around the world are taking important steps toward safeguarding their senior population through laws, policies, and programs. Law student Jamie Lumsden provides an overview of programs for seniors in Germany, Japan, and South Africa.

    Most of us are familiar with programs for older Americans – from Social Security and Medicare, to anti-discrimination and accessibility laws. While these programs are set up to help protect America’s seniors, population aging around the world is a looming concern as global Baby Boomers become retirees, while the younger generations delay or decide against parenting.1

    This trend is creating a gap between the number of retirees and the number of people in the workforce,2 including those available to care for the elderly.3

    Issues will presumably arise because many countries financially support their elderly population through government programs paid for by the working population.4 However, beyond concern for the financial strain on these programs, there are myriad considerations that law and policy makers must pay attention to when considering how to best protect and manage a rising population of seniors.5

    Over 15 years ago, 159 United Nations countries met in Madrid to hold the Second World Assembly on Ageing.6 The Madrid International Plan of Action on Ageing (MIPAA) proposed a plan based around three themes for countries to focus on when addressing how to handle these changes: “older persons and development; advancing health and well-being into old age; and ensuring enabling and supportive environments.”7

    Jamie Lumsden com jamie.lumsden directsupply Jamie Lumsden, is a 2L at Marquette University Law School and a legal intern at Direct Supply, Inc., Milwaukee.

    How are countries beyond the U.S. bridging the gap between the ideals created at the U.N. Conference and the realities of their varying cultures, economies, and overall national development? This article examines those U.N. proposals and the perspective of three different countries: Germany, Japan, and South Africa.

    Opportunity and Income Security

    Broadly, the theme of “older persons and development” in MIPAA integrates opportunity and income security. As living longer becomes more commonplace, countries’ laws, programs, and initiatives must adapt to support continued learning, participation in the workforce, and financial stability after retirement.8 For example, the United States has adopted laws prohibiting employment discrimination because of age,9 tax credits for certain education expenses,10 incentives for private retirement plans,11 and a public Social Security income program.12

    Elsewhere in the world, Germany implemented the Allgemeines Gleichbehandlungsgesetz (General Act on Equal Treatment) in 2006. This Act prohibits direct and indirect discrimination against protected categories – including age – in employment actions, vocational training, and other social systems such as education.13 From 2005 to 2015, Germany also had the Perspektive 50Plus plan which affirmatively rewarded employers for hiring people over 50 and provided assistance to older workers who took on lower paid positions.14 In addition to employment support, the country also supports Volkshochschulen (Adult Education Centers), with about 1.2 percent of gross domestic product in Germany spent on adult education.

    The Volkshochschulen teaches general, vocational, political, and other types of continuing education. While these centers are primarily funded by the attendees and companies, governmental support is provided through subsidies from unemployment insurance, fee assistance for attendees, and tax relief, among other things.15 Aside from education and employment, Germany supports its elderly population through a statutory pension insurance system. The system is currently in a transition period that is raising the eligibility age gradually from 65 to 67 to offset the rising imbalance between retirees and active contributors; the pension is paid to insured persons based on their contribution during their working years.16

    As the world’s oldest country, Japan’s population is comprised of over 25 percent of persons aged 65 and up.17 To ensure the continued development of this large portion of the population, Japan has its Act on Stabilization of Employment of Elderly Persons of 1971, which is supplemental to Japan’s constitutional right to work,18 technology initiatives,19 and a public pension system.20 Japan’s Act on Stabilization of Employment of Elderly Persons covers responsibilities of employers, including a minimum fixed retirement age of 60 and collaborating with older workers to create opportunities that align with the worker’s ability and desires.21 Additionally, a revision of the Act sets up Silver Human Resource Centers which contract work from local businesses and other entities and assign that work to the “silver” members.22

    Aside from vocational training initiatives in the Act, Japan doesn’t have a formal government program for continuing adult education.23 However, Japan’s privatized Postal Service, Japan Post Group, partnered with IBM and Apple to provide accessible iPads and apps for seniors in Japan. The objective was to increase the elderly population’s interaction with and education on technology.24 Other technology programs, referred to as “Silver ICT,” are being explored as well to engage older persons in technology and improve their standard of life.25

    Japan’s pension system is set up as a mandatory insurance system where residents aged 20 to 59 contribute a set monthly amount with the option to continue contributing up to age 64. Once a resident reaches the national retirement age of 65 they receive a flat payment amount from the pension fund with an option to reduce payments and start at 60 or increase payments by deferring until 70.26

    By contrast, in South Africa only 5 percent of the population is over 65 years old.27 South Africa has created foundational laws such as the Employment Equity Act, started education programs such as Kha Ri Gude (Let Us Learn) Adult Literacy Programme, and continued the nearly century-old Older Person’s Grant.28 Although it was mainly aimed at healing apartheid segregation and inequity, the Employment Equity Act also prohibits discrimination because of age and counsels employers to make affirmative action plans to achieve employment equity for the Act’s protected classes.29

    Also born from efforts to heal the effects of apartheid are South Africa’s adult literacy programs, most recently the Kha Ri GudeAdult Literacy Programme. Kha Ri Gude was a six-month literacy curriculum run by the Department of Basic Education and served its goal of teaching 50 percent of South Africa’s illiterate adults between 2008 and 2016. As of 2017, the department was planning the program’s wind down.30 Although changes have been made to the grant over time, South Africa has maintained its Older Person’s Grant throughout its government reformation.31 The grant is noncontributory and is a flat monthly payment available to all South Africans over 60 who pass a means test.32

    Health Care, Senior Care, and Accessible Spaces

    MIPAA’s approach to “advancing health and well-being into old age” includes keeping seniors active, certifications for those providing senior care, focusing on mental health care, and creating spaces that allow seniors to enjoy more independence.33

    In the U.S., some law-making powers are delegated to the states such as certifications for senior care professionals.34 On the federal level, the Americans with Disabilities Act of 1990 creates a legal framework requiring certain public spaces to be more accessible to citizens with limited mobility.35 Additionally, the Affordable Care Act limits the insurance premiums charged to older persons for their coverage.36

    Germany sets most health and well-being laws at a federal level, including the new Pflegeberufegesetz (Nursing Professionals Act),37 the Behindertengleichstellungsgesetz (Equality for Persons with Disabilities Act),38 and a type of universal health care system.39 The restructured nursing law, Pflegeberufegesetz, is set to go into effect Jan. 1, 2020. The Act consolidates general, geriatric, and pediatric nurses’ training programs from three separate 3-year programs into a standardized two years with a third year allowing for specialty selection; the new structure aligns with standards across the European Union.40

    Also enacted by the German federal government, Behindertengleichstellungsgesetz mandates barrier-free design for certain new and renovated public buildings and amenities, though it does not mandate barrier-free design in private buildings.41 Germany’s health care system made health insurance mandatory in 2009, but residents have a choice between Gesetzliche Krakenversicherung (statutory health insurance) or Private Krankenversicherung (private health insurance).42 The health care system also provides for long-term care insurance for subscribers needing a period greater than six months of assistance, which includes those needing assistance because of old age.43

    As the population of Japan ages, its care regulations, building and infrastructure design laws, and health care policy have to adapt. Medical regulation has been present for almost a century and a half in Japan with modern nursing falling under the purview of the Act on Public Health Nurses, Midwives and Nurses of 1948. Both nurses and assistant nurses must pass a national exam, but once the exam is passed the licensure is lifelong.44

    More recently than the establishment of nursing regulations, Japan has passed accessibility laws: the “Heartful” Building Law of 1994 called for barrier-free buildings. The Transportation Barrier Free Law of 2000 was passed to improve accessibility of public transit systems and facilities. And in 2006, the Japanese government combined the two subjects of their previous enactments in the Barrier-Free Act in order to standardize development of a barrier-free society.45 Japan also has a mandatory health insurance system based off employment, age, and residence.46 As of 2000, there is a mandatory long-term care insurance system that covers all residents over 40.47

    South Africa has also developed laws to support advancing health and well-being for its older citizens and is supported in its efforts by nongovernmental organizations (NGOs). The Nursing Act of 2005 regulates professional, staff, and auxiliary nurses48 while the Samson Institute for Aging Research (SIFAR) is working to create uniformity in elderly care workers’ training.49 Another partnership between government policy and NGO initiatives is improving infrastructure to improve the lives of older South Africans.

    At the moment, NGOs such as The Association For The Aged (TAFTA) and the country’s national government are primarily focused on projects to create adequate housing before focusing on accessibility standards. However, as the country’s public transportation is built, there are some who are advocating for accommodations to be integrated for the elderly and disabled.50

    With respect to promoting the health of its seniors, South Africa is in development of a universal health care system for all of its citizens called National Health Insurance (NHI). NHI started in 2012, and is still in its 14-year implementation period. The system is intended to provide free and accessible health care to all socio-economic classes, which should significantly improve seniors’ access to health care across the country.51

    Protection and Regulation

    “Ensuring enabling and supportive environments” encompasses the protection aspects of an aging population including protection of older persons, regulations for care and care facilities, educating older persons on their rights, and informing younger persons on the importance of older persons.52

    In the United States, there are elder protection laws both at the federal and state level. At the federal level, over the past decade, the federal government passed the Elder Justice Act in 2010, followed by the Elder Abuse Prevention and Prosecution Actof 2017, both of which are intended to bolster protection for America’s elderly citizens.53

    Also split between federal and state law are regulations for senior care facilities. State law governs senior care facility licensing, as well as Medicaid disbursements and associated requirements. The federal government through The Centers for Medicare & Medicaid Services sets regulations that must be met by participating facilities as a condition of receiving Medicare funding.54

    Germany protects its older population at the federal level through quality care standards and general laws on abuse. Germany has no elder-specific abuse laws, though it does have universal abuse laws and laws that are aimed at ensuring those older persons in need of care are able to receive care.55 Additionally, under the same section of law that creates the long-term care insurance mentioned earlier, Germany regulates the quality of care in long-term care facilities including a section providing for inspections of facilities.56

    Protective measures for Japan’s elderly population are set at a national level with enforcement of the laws delegated to municipalities and prefectures. The national Act on the Prevention of Elder Abuse, Support for Caregivers of Elderly Persons and Other Related Matters sets responsibilities for caregivers and others that are in a position to notice signs of elder abuse to report any suspicion of such abuse. Municipalities are responsible for maintaining an appropriate system for these reports to be handled quickly and to monitor caregivers’ workload and mental health so that measures can be taken to relieve an overburdened caregiver before any potential abuse happens.57 Many of these caregivers are in-home caregivers because Japan’s elderly population exceeds the available long-term facility openings.58 These finite long-term facilities are regulated by the Minister of Health, Labour, and Welfare with opinions given by the Social Security Council before new regulations are promulgated.59

    South Africa sets protection standards under a single act, The Older Persons Act, which sets a comprehensive procedure for elder abuse identification, reporting, investigating, and trying before a magistrate. The act also designates the Minister of the Department of Social Development as the office in charge of regulations of community-based care services and residential facilities.60 The set “national norms and standards regarding the acceptable levels of service to older persons” for each type of care services are available on the Department of Social Development’s website.61

    Many countries around the world are taking similar, important steps toward safeguarding their senior population through laws, policies, and programs.

    As the population age ratio tilts further toward an older population, these laws, policies, and programs will need to continue to evolve and adapt to help support a healthy, thriving senior population.

    Endnotes

    1 Joseph Chamie, “Replacement Fertility Declines Worldwide,” YaleGlobal Online, July 12, 2018.

    2 Rick Gladstone, “The Globe Is Going Gray Fast, U.N. Says in New Forecast,” The New York Times, June 17, 2019.

    3 Jeff Stein, “‘This will be catastrophic’: Maine families face elder boom, worker shortage in preview of nation’s future,” The Washington Post, Aug. 14, 2019.

    4 Help Age International, Pension Watch.

    5 Political Declaration and Madrid International Plan of Action on Ageing, Second World Assembly on Ageing in Madrid, Spain, April 8-12, 2002.

    6 Id.

    7 Id.

    8 Id.

    9 29 U.S.C. §§ 621, 623.

    10 Janet Berry-Johnson, “5 Education-Related Tax Credits & Deductions for College Tuition & Expenses,” Money Crashers, April 12, 2019.

    11 International Revenue Service, “Tax Information for Retirement Plans.”

    12 U.S. Social Security Administration, “Retirement Benefits.”

    13 Germany, General Act on Equal Treatment of 14th August 2006 (Federal Law Gazette 1, p. 1897), last amended by Article 15, para 66 of the Act of 5 February 2009 (Federal Law Gazette 1, p. 160).

    14 Graupner, Hardy, “Government Unveils Plans to Keep Seniors Working Longer,” March 9, 2006.

    15 Brandt, Dr. Peter, “Adult Education in Germany.”

    16 United Nations Human Rights Office of the High Commissioner, “Questionnaire on social protection of older persons addressed to Governments by the Independent Expert on the question of human rights and extreme poverty: Reply of the government of the Federal Republic of Germany;” Organization for Economic Co-operation and Development, “Pensions at a Glance 2011: Retirement-Income Systems in OECD Countries: Germany.”

    17 World Population Review, “Japan Population 2019,” July 11, 2019.

    18 Constitution of Japan, Nov. 3, 1946 (effective May 3, 1947).

    19 Peter A. Tatian, “Improving seniors’ lives with new technology,” Urban Institute, April 10, 2014.

    20 Japan Pension Service, “National Pension System,” and Organization for Economic Co-operation and Development, “Pensions at a Glance 2011: Retirement-Income Systems in OECD Countries: Japan.”

    21 Japan, Law Concerning Stabilization of Employment of Older Persons (Law No. 68 of May 25, 1971), last amended by Law No. 103 of June 11, 2004.

    22 International Longevity Center Japan, “Japan’s Silver Human Resource Centers: Undertaking an Increasingly Diverse Range of Work.”

    23 Yoko Ishikura, “Start lifetime learning now,” Japan Times, Aug. 15, 2018.

    24Japan Post Group, IBM and Apple Deliver iPads and Custom Apps to Connect Elderly in Japan to Services, Family and Community,” April 30, 2015.

    25 Tatian, Peter A., “Improving seniors’ lives with new technology,” April 10, 2014.

    26 Japan Pension Service, “National Pension System;” Organization for Economic Co-operation and Development, “Pensions at a Glance 2011: Retirement-Income Systems in OECD Countries: Japan.”

    27 AARP International, “The Aging Readiness & Competitiveness Report: South Africa.”

    28 International Labor Office Social Protection Department, “South Africa: Older Person’s Grant,” August 2016.

    29 Tim Hayden, “Summary of the Employment Equity Act, No 55 of 1998.”

    30 South African Government, “Kha ri Gude Mass Literacy Campaign;” The Department of Basic Education, “DBE family pay tribute to education stalwart,” Thuto Vol. 188, May 25, 2018; Norma Romm and Mpho Dichaba, “Assessing the Kha Ri Gude Mass Literacy Campaign: A developmental evaluation,” July 2015.

    31 International Labor Office Social Protection Department, “South Africa: Older Person’s Grant,” August 2016.

    32 South African Government, “Old age pension.”

    33 “Political Declaration and Madrid International Plan of Action on Ageing,” Second World Assembly on Ageing in Madrid, Spain, April 8, 2002 - April 12, 2002

    34 University of Minnesota School of Public Health, “State Rules and Regulations Pertaining to Nurses Aide Training and Competency,” January 2011.

    35 42 U.S.C. §§ 12101-213.

    36 Office of the Legislative Counsel, “Compilation of Patient Protection and Affordable Care Act,” as amended through May 1, 2010.

    37 Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, “Weiterentwicklung der Pflegeberufe.”

    38 Germany, Behindertengleichstellungsgesetz (BGG) of 2002, last amended July 10, 2018 (Fed. Law Gazette I page 1117).

    39 Wida Rogh, “Health Policies: Germany (2015).”

    40 Working in Germany: the official website for qualified professionals, “Nursing professionals.”

    41 Orthopädie Technik, “Criticism of Disability Equality Act,” Feb. 5, 2016; Behindertengleichstellungsgesetz (BGG) of 2002, last amended July 10, 2018 (Fed. Law Gazette 1, p. 1117).

    42 Wida Rogh, “Health Policies: Germany (2015).”

    43 Erika Schulz, “The Long-Term Care System for the Elderly in Germany,” June 2010.

    44 Japanese Nursing Association, “Overview of Japanese Nursing System;” Jun Kaneko, “Caregiving industry seeks system for foreigners who fail test to change residency status,” March 3, 2019.

    45 Nippon.com, “Barrier-Free Design in Japan,” Aug. 28, 2016; Ayuk Christian, “From ‘Barrier Free’ to ‘Age-Friendly’.”

    46 Japan Health Policy Now, “3.1 Japan’s Health Insurance System.”

    47 Japan Health Policy Now, “Long-term Care Insurance.”

    48 South Africa, Nursing Act, 2005 (Act No. 33 of 2005)

    49 SIFAR, “Care Work in the Older Persons’ Sector: The Case for Standard Practice and Enhancing the Status of Care Workers.”

    50 AARP International, “The Aging Readiness & Competitiveness Report: South Africa,” Page 6.

    51 South African Government, “National Health Insurance.”

    52Political Declaration and Madrid International Plan of Action on Ageing,” Second World Assembly on Ageing in Madrid, Spain, April 8-12, 2002.

    53 Kirsten Colello, “The Elder Justice Act: Background and Issues for Congress,” Jan. 24, 2017.

    54 Centers for Medicare & Medicaid Services, “State Operations Manual: Appendix PP - Guidance to Surveyors for Long-Term Care Facilities.”

    55 German Institute for Human Rights, “Guiding Questions: Neglect, violence and abuse,” May 5, 2017.

    56 Germany, SBG XI. Social Nursing Insurance, last amended May 6, 2019 (Federal Law Gazette I, p. 646).

    57 Japan, Act on the Prevention of Elder Abuse, Support for Caregivers of Elderly Persons and Other Related Matters (Act No. 124 of Nov. 9, 2005).

    58 AARP International, “The Aging Readiness & Competitiveness Report: Japan,” p. 24.

    59 Japan, Long-Term Care Insurance Act (Act No. 123 of Dec. 17, 1997).

    60 South Africa, Older Persons Act of 2006 (Act No. 13, 2006)

    61 Department of Social Development Republic of South Africa.





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