Tuesday, February 21, 2017

DC Aid-in-Dying Law Final

As we had blogged previously, D.C. city council had passed an aid-in-dying law that was signed by the mayor. Congress had 30 days to overturn it and as we also blogged previously, that at least one Congressman attempted to overturn it. The 30 days expired last week, and the law became effective on February 18, 2017.  Washington, D.C., now seventh place in U.S. to officially legalize assisted suicide  explains that this means that "D.C. became the seventh jurisdiction in the U.S. to legalize assisted suicide on Saturday, as the Republican-controlled Congress failed to block the law."  Although there was a resolution from the House Oversight Committee, the resolution wasn't voted on by the House, so the law became effective.

 

February 21, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 20, 2017

How Do "Domestic Partnerships" Fare for Elderly Couples?

George Washington Law Professor Naomi Cahn recommended an interesting new article from the Elder Law Journal, "The Precarious Status of Domestic Partnerships for the Elderly  in a Post-Obergefell World."

Authors Heidi Brady, who is clerking for the Fifth Circuit Court of Appeals, and Professor Robin Fretwell Wilson from the University of Illinois College of Law, team to analyze key ways in which elderly couples in domestic partnerships may be treated differently, and sometimes more adversely, than same sex couples who are married.  From the abstract: 

Three states face a particularly thorny question post-Obergefell [v. Hodges, the Supreme Court's 2015 decision recognizing rights to marry]: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. . . . This Article drills down on three specific obligations and benefits tied to marriage -- receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program -- and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. 

Thank you, Naomi, for this recommendation.  

February 20, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, February 19, 2017

Increase in Alzheimer's within Latino Population?

Kaiser Health News ran a story recently about the increase in Alzheimer's cases amongst Latinos. 'Tsunami’ Of Alzheimer’s Cases Among Latinos Raises Concerns Over Costs, Caregiving citing to a recent report explains

Across the United States, stories [of people with Alzheimer's] are becoming more common, particularly among Latinos — the fastest growing minority in the country.

With no cure in sight, the number of U.S. Latinos with Alzheimer’s is expected rise by more than eight times by 2060, to 3.5 million, according to a report by the USC Edward R. Roybal Institute on Aging and the Latinos Against Alzheimer’s network.

Advanced age is the leading risk factor for Alzheimer’s disease and the likelihood of developing Alzheimer’s doubles about every five years after age 65. As a group, Latinos are at least 50 percent more likely than whites to have Alzheimer’s, in part because they tend to live longer, the report notes.

Caregiving (which we have blogged about on several occasions) is of course an important issue for all of us, but in particular, this story explains, "[a]bout 1.8 million Latino families nationwide care for someone with Alzheimer’s and other types of dementia. And while the Roybal report shows that Latino families are less likely than whites to use formal care services, such as nursing home care, institutionalized care is becoming more common among these families."  Although there are some in nursing homes, limited resources factor in to the family's ability to turn to outside help for the elder with Alzheimer's.

The story covers the economics of care, available community programs, the importance of public education, and resources for the family.

When seeking support, the best place to start is at a local community group or center — a church, a nonprofit, a United Way office, or the local Alzheimer’s Association chapter, for example, Mizis said. These groups will most likely refer caregivers to a county’s Agency on Aging or a state’s Department of Aging.

February 19, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Friday, February 17, 2017

Sigificant Relationships: Arizona's New Guardianship Law Provides Rights of Contact for Wards

As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward.  Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact.  A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:

"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward.  The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested.  The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest."

In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.  

"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."

The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away.  Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice." 

I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney."  Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?  

February 17, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Thursday, February 16, 2017

Exceeding Expectations: 20 New Yorkers

Check this out! A project from "the Robert N. Butler Columbia Aging Center at Columbia University's Mailman School of Public Health",  Exceeding Expectations is the stories of

20 New Yorkers from all different circumstances and backgrounds who have both exceeded life expectancy and who are disrupting commonly-held expectations of what it means to grow old.

Every few weeks, [the authors] introduce the story of a new person to our readers. You will meet a woman who cares for her 1-year-old great-grandchild, a man who was in prison for 30+ years and is trying to make up for lost time and an optometrist who has retired four times but keeps returning to work.

And check out NextAvenue's  This Is What Growing Old Really Looks Like: 12 pictures that will make you think differently about getting older.

Isn't it time for a little positive news?

February 16, 2017 in Consumer Information, Current Affairs, Other, Retirement | Permalink | Comments (0)

Wednesday, February 15, 2017

A Home Accessible to Mobility Devices

I think designing homes to allow a person to age in place is great (and of course, we have to make the community accessible as well). So I was interested in this article that discussed making the home accessible when the resident used a walker or wheelchair. Kaiser Health News ran the article, How To Make A Home Much More Friendly To Seniors Using Wheelchairs Or Walkers. The article offers this sobering statistic "Researchers at the Harvard center found that fewer than 10 percent of seniors live in homes or apartments outfitted with basic features that enhance accessibility — notably, entrances without steps, extra-wide hallways or doors needed for people with wheelchairs or walkers."  Yet, "[a]bout 2 million older adults in the U.S. use wheelchairs, according to the U.S. Census Bureau; another 7 million use canes, crutches or walkers... [and] [t]hat number is set to swell with the aging population: Twenty years from now, 17 million U.S. households will include at least one mobility-challenged older adult, according to a December report from Harvard University’s Joint Center for Housing Studies."

The article discusses a list of items to be considered so that the home is accessible, including a ramp into the home, wider doors, turning radius, removal of under the sink cabinets, showers without curbs, and more.

February 15, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Summer Study in London: Prof. Kate Mewhinney's Course on Comparative Law & Aging

Our good friend, a true expert on international perspectives on elder law, Professor Kate Mewhinney, is offering her course on Comparative Law and Aging in London this summer.  Here are the details for the 3 credit course, part of a summer program that begins May 29, 2017:

This course examines how countries address what has been called the “silver tsunami” – the rapidly aging demographic.  Through a comparative and international analysis students will learn how different legal systems address similar challenges brought on by increased longevity and fewer births.  The course allows us to compare legal approaches to such issues as retirement ages, pensions and Social Security, appointment of financial surrogates, employment discrimination, filial responsibility and health care policies on long-term care and end-of-life options.  The focus will be on the U.S., U.K. and major European countries, as well as Japan, the European Union, and China.  There are no prerequisites. Students will be graded on class participation, a quiz on fundamentals, and a short research paper to be turned in within a month of the course end.

For more information on enrollment and other details of Wake Forest University School of Law's summer program in London, see the details here.   

February 15, 2017 in Current Affairs, Ethical Issues, International | Permalink | Comments (0)

Tuesday, February 14, 2017

More on Aid-in-Dying

We reported previously that DC had passed an aid-in-dying bill but that there were those in Congress who expressed an intent to overturn it. But it's not just the DC scenario that has advocates concerned.  Kaiser Health News ran an article, Aid-In-Dying Advocates, Disheartened By Supreme Court Pick, Brace For New Fight. The article, part of KHN's morning briefing, summaries articles from other publications about Judge Gorsuch's book and his position on aid-in-dying. Click here to access those articles.

While we're on the subject, also check out this article from KHN on Aid-in-Dying Laws Don’t Guarantee That Patients Can Choose To Die, discussing patient access in those states with aid-in-dying laws (we'd previously discussed this in an article from the Denver Post).

February 14, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

2017 Summer Internships Available at David Berg Center for Law and Aging

I have had several law students take advantage of summer internships available through the David Berg Center for Law and Aging in New York City and they always report it was a great experience.  The window is now open for applications for summer 2017.  Here are the details:

The David Berg Center for Law and Aging is seeking select students for its Summer 2017 internship program. The David Berg Center for Law and Aging focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation.  Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale.  Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse.  Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will be exposed to legal practice in New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York State Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse.  Past issues have included questions surrounding legal capacity, guardianship, powers of attorney, Medicaid eligibility, copyright, and right to privacy.  The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters.  The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. Dormitory style affordable housing at the College of Mount Saint Vincent is available.

Interested students should send a resume, cover letter and writing sample to Deirdre Lok.  Her email address is available on the Center's website here

February 14, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Monday, February 13, 2017

The Elder Justice Act from the Congressional Research Service

Late last month the Congressional Research Service published the following: The Elder Justice Act: Background and Issues for Congress.  Here is an excerpt from the executive summary

Elder abuse is a complex issue that often requires a multifaceted policy response that combines public health interventions, social services programs, and criminal law enforcement for abusive behavior. To address this complexity, the Elder Justice Act was enacted on March 23, 2010 as part of the Patient Protection and Affordable Care Act (ACA, P.L. 111-148, as amended). The act attempt s to provide a coordinated federal response by emphasizing various public health and social service approaches to the prevention, detection, and treatment of elder abuse. The Elder Justice Act also represents Congress’s first attempt at comprehensive legislation to address abuse, neglect, and exploitation of the elderly at the federal level.

To date, most activities and programs authorized under the Elder Justice Act have not received federal funding through the annual appropriations process. For the first time, Congress appropriated $4 million for a new Elder Justice Initiative in FY2015 and $8 million in FY2016. However, the authorizations of appropriations for most provisions under the act expired on September 30, 2014. Despite the lack of discretionary appropriations prior to FY2015, some elder justice activities have received funding from mandatory funding appropriated through the ACA Prevention and Public Health Fund (PPHF). As a result of this limited federal funding, the federal government has not substantially developed and expanded its role in addressing the prevention, detection, and treatment of elder abuse.

For FY2012, the Secretary of the Department of Health and Human Services (HHS) transferred $6.0 million to the Administration for Community Living (ACL) from the PPHF for new grants to states and tribes to test elder abuse prevention strategies. Funded projects included using forensic accountants to prevent elder financial exploitation, increasing medication adherence to prevent elder self-neglect, and developing screening tools to identify elder abuse. For FY2013, $2.0 million was transferred to ACL from the PPHF for elder justice activities, which funded development of the National Adult Protective Services Data Reporting System Project. No PPHF funds were transferred to ACL for elder justice activities for FY2014 or subsequent fiscal years.

For FY2017, the President’s budget request included $10.0 million in discretionary funding for Elder Justice/Adult Protective Services (APS) that would be used to fund APS, research, and evaluation activities. The 2017 budget request did not specify an intended transfer of funding from the PPHF for elder justice activities. For FY2017, the Senate Appropriations Committee recommended $10.0 million for the Elder Justice Initiative in its FY2017 Departments of Labor, Health and Human Services, and Education, and Related Agencies (LHHS) appropriations bill. The House Appropriations Committee recommended $8.0 million in its FY2017 LHHS appropriations bill. Neither House nor Senate floor consideration of the bill occurred in the 114th Congress. Since the start of the fiscal year (October 1, 2016), funding for LHHS programs and activities has been provided by two continuing resolutions (CR; P.L. 114-223 and P.L. 114-254). The second FY2017 CR provides continuing appropriations for LHHS appropriations through April 28, 2017, or until full-year appropriations are enacted.

***

The report offers some observations for Congress as well as some concluding thoughts:

The Elder Justice Act represents one set of policies that exist in the broader context of domestic social policy to address the complex issue that is elder abuse. That is, as a federal legislative response, the Elder Justice Act may best serve as a catalyst for further federal coordination and action that can bring about greater public awareness and attention to the needs of a growing, and potentially vulnerable, aging population. According to GAO, the Elder Justice Act "provides a vehicle for setting national priorities and establishing a comprehensive, multidisciplinary elder justice system in this country."44 Such a response touches on a range of domestic policy programs and issues that are not specific to one congressional committee’s jurisdiction or area of expertise. Furthermore, congressional oversight into federal administration, implementation, and related activities must rely on different committees of jurisdiction as well as the experience of select committees such as the Senate Special Committee on Aging....

 

February 13, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Arbitration Case Before Supreme Court

Mark your calendars. The Supreme Court is hearing oral arguments on February 22, 2017 in the case of Kindred Nursing Centers Limited Partnership, dba Winchester Centre for Health and Rehabilitation, nka Fountain Circle Health and Rehabilitation, et al., Petitioners v. Janis E. Clark, et al., docket # 16-32.

Here is the question presented 

The Federal Arbitration Act (FAA) provides that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (emphasis added). That provision requires states to "place [] arbitration contracts 'on equal footing with all other contracts."' DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006)).

The Supreme Court of Kentucky here refused to enforce the parties' arbitration agreements because it held that the attorneys-in-fact who signed those agreements lacked authority to enter into arbitration agreements-despite broad powers of attorney, including the power to make "contracts"-because those agreements waive a "divine God-given right" to a jury trial. App., infra, 43a. The court concluded that only an express mention of arbitration agreements in the power of attorney permits an attorney-in-fact to bind her principal to an arbitration agreement (Ibid.), even though Kentucky law does not require such an express mention of any other type of contract.

The question presented is:

Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.

 

February 13, 2017 in Consumer Information, Current Affairs, Federal Cases, Health Care/Long Term Care | Permalink | Comments (0)

Friday, February 10, 2017

Setting New Fitness Records at 100+

When I first saw the news stories of the French cyclist who had set a cycling record for sixty minutes, I wasn't particularly impressed -- that is, until I realized that Mr. Robert Marchand is now age 105 and he's trying to break his own record of almost 17 miles per hour, set when he was 103.  Turns out this is part of a much larger story about fitness in aging.  From the New York Times:  

At the age of 105, the French amateur cyclist and world-record holder Robert Marchand is more aerobically fit than most 50-year-olds — and appears to be getting even fitter as he ages, according to a revelatory new study of his physiology.

 

The study, which appeared in December in the Journal of Applied Physiology, may help to rewrite scientific expectations of how our bodies age and what is possible for any of us athletically, no matter how old we are.

For more, read Lessons on Aging Well, From a 105 Year-Old Cyclist.  Inspiration for your own weekend workout, perhaps! 

February 10, 2017 in Consumer Information, Health Care/Long Term Care, Retirement, Science, Sports | Permalink

Thursday, February 9, 2017

Laughter...the Best Medicine

We've all heard the saying, laughter is the best medicine. Kaiser Health News recently ran the story, Laughing Until You Die: Humor May Be Antidote For Pain Of Death For Patients, Survivors which focuses on the benefits of laughter.

An aging generation of boomers, the oldest of whom are now 70, grew up to the background sounds of TV laugh tracks and are accustomed to laughing at things that might not always seem so funny. There’s even a non-profit organization funded by donors, conference revenue and membership dues, whose mission is simply reminding people that laughter is a core ingredient of all facets of life — even end of life.

The article provides several anecdotes from folks who live with this laughter philosophy and even mentions the Association for Applied and Therapeutic Humor.  The article cites advice from the association "Make certain that you know the ailing person very well before using humor with them."  Exactly what type of humor should be used? According to the article, "[f]or some folks, the process of dying comes with less stress when it’s something of a laughing matter. Not a yuk-yuk laughing matter. But, at its simplest, a willingness to occasionally make light of the peculiarities — if not absurdities — that often go hand-in-hand with end-of-life situations."

February 9, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, February 8, 2017

New Issue Briefs from Justice in Aging

Justice in Aging has released two new issue briefs concerning the new nursing home regs.  One is on involuntary transfers and discharges and is available here. The other is on unnecessary medications and antipsychotic meds, and is available here. The briefs were done with the Center for Medicare Advocacy and the National Consumer Voice for Quality Long-Term Care.

Here's the executives summary for the transfer/discharge brief

The involuntary transfer/discharge regulations have changed, but not dramatically. Facilities still can force a transfer/discharge only under one of six specified circumstances, and a resident continues to have the right to contest a proposed transfer/discharge in an administrative hearing. The revised regulations narrow the facility’s ability to base a transfer/discharge on a supposed inability to meet the resident’s needs, by requiring increased documentation by the resident’s physician. The regulations also limit transfer/discharge for nonpayment, by stating that nonpayment has not occurred as long as Medicaid or another third-party payor is considering a claim for the time period in question. All transfer/discharge notices must be sent to the resident, resident representative(s), and (in a new requirement) the Long-Term Care Ombudsman program. The revised regulations now explicitly state that a facility cannot discharge a resident while an appeal is pending.

Here's the executive summary for the medications brief:

Regulations about unnecessary drugs and antipsychotic drugs have been moved from the quality of care section to the pharmacy services section. Some provisions have been moved but not otherwise changed: these include protection from unnecessary medications, requirements for gradual dose reductions, and the use of behavioral interventions in order to discontinue drugs, "unless clinically contraindicated." In addition, the pharmacy services regulation includes a new discussion of a broader category of psychotropic drugs, along with new controls over "as needed" (PRN) psychotropic drugs. The revised regulations also expand requirements for drug regimen reviews.

These and the first brief in the series are available here.

February 8, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, February 7, 2017

Is Tech Changing Aging?

We've blogged on a number of occasions about the use of tech to provide services and support to elders, for various reasons. The American Society on Aging will have a series of sessions that deals with how tech is affecting, impacting, or facilitating aging at their annual Aging in America conference. Searching the sessions listings by the keyword "technology" brings up a significant number of sessions.  An email I received highlighting the tech sessions included this list of sessions

  • NEST CG Program: Co-design of Environments, Services and Technologies With an Aging Population
  • Improving Health and Wellness of Seniors Using Wearable Technology
  • Co-Designing Environments: The Way Forward
  • On Participation: Co-Design of Services
  • 21st Century Digital Communities: Technology that Supports Aging Needs
  • An Innovative Model of Technology Strategies That Promote Aging in Place in Low-Income Housing Settings
  • Building a Community-Based Sustainable Telehealth Intervention Program for Seniors
  • Quantifying the Positive Effects of Music and Memory iPods and iPads for Dementia Care
  • Policy to Practice: Assistive Technology and Aging
  • Addressing Social Isolation Through Technology
  • Gadgets or Godsends: How to Understand and Leverage Digital Technologies to Help Seniors
  • Technology and a Multigenerational Staff
  • The Impact of Senior-Friendly Websites
  • Access: Innovative Mobility Options for Seniors
  • Integrated eTechnology: Eldercare for the 21st Century
  • Innovative Design Applications for Creating Living Environments for All Ages and Abilities
  • ABCs of In-Home Technology for Post-Acute Patients
  • Mobile Technology and Aging: How Seniors Are Keeping Up and Connecting
  • New Technologies Supporting Creation and Sharing in Art Therapy With Older Adults
  • Technology in the Life of the Caregiver
  • Using Technology in Long-Term Care
  • Medication Reconciliation Using a Mobile On-Demand Virtual Pharmacist
  • Technology Solutions to Collect and Analyze Data Outside Hospital Walls
  • Your Digital Mission: How Social Technology Can Advance Your Organization's Service
  • Developing a One-Call, One-Click Transportation System
  • Age-Friendly Efforts 2.0
  • Technology for Social Change

If you are at the conference and attend any of these tech sessions, let us know.

February 7, 2017 in Consumer Information, Current Affairs, Programs/CLEs, Web/Tech | Permalink | Comments (0)

You Tube Videos for Clients?

Robert Fleming sent out some info on a listserv about a series of videos his firm has created and placed on You Tube to educate clients about specific substantive areas of law as well as answers to practical questions. That got me thinking about the value of such a service to clients and how you could even have a video on what to expect when you go to your lawyer's office for the first time.  I wondered if any of our readers also have videos on You Tube (or on your firm's webpage) along these lines. Let us know?

BTW, the Fleming and Curti videos are just the first batch in a series. If you want to be kept apprised of new videos, you can subscribe to the Fleming and Curti You Tube channel (click on the red subscribe button-mine is on the top right hand of the screen).

February 7, 2017 in Consumer Information, Current Affairs, Legal Practice/Practice Management, Other, Weblogs | Permalink | Comments (1)

Monday, February 6, 2017

The United Nations of Caregiving

Have you ever spent the night in a nursing home or dementia care center?  How about for a week?

While on my sabbatical in Arizona I had the recent opportunity to spend several nights and many daytime hours in a care center.  Quite simply, the experience deepened my respect and appreciation for the roles played by professional caregivers at all levels.  

The facility in question is a nonprofit center, licensed for assisted living, and devoted exclusively to dementia care without restraints, the very definition of "mission driven" care. Set in a five acre campus, it is what I would call a "green house model" community (or more precisely, an Arizona Model Dementia Specific Assisted Living Project), with a maximum of twelve residents per cottage. It isn't a fancy place, but it is inviting, with a circular path between the four cottages that encourages people to sit under the trees, mingle and chat. Many residents are admitted on "private pay" status, but the center is also Medicaid certified.

Three shifts per day of CNAs (certified nursing assistants), usually at least two per cottage for each shift, provide the bulk of the personal care, cleaning, and meal service for the residents.  The CNAs rotate shifts between the four cottages over the course of a single work week, sharing the workload of more challenging residents.  There is also a small staff at the administrative level, including an executive director (who is working on her PhD thesis in her rare, spare time) and two LPNs, and there is regular input from both an MD and a very experienced Nurse Practitioner (who also has a PhD).  A jack-of-all trades-building-maintenance-man, an up-beat program planner, plus two expert cooks round out the staff.  I was on a nodding acquaintance with many of these people as a result of regular visits for close to three years, but my most recent ten days of "living in" gave me profound new appreciation.

The news media, for understandable reasons perhaps, tends to focus on tragedies and bad experiences in long-term care.  Lawyers also tend to do the same, although for other reasons. At a recent legal conference, an experienced attorney who represents families in tort suits against nursing homes told me that in his experience, there are "no good nursing homes," only "less bad" ones.  

Frankly, my experience, not just recently, but over 30+ years, is that there are very good care centers available. And the quality of living can be better than in the ol' homestead. It does take time to choose the right center for a loved one, and not every place will work for every person. I suspect the differences depend on how well any center identifies and supports its chosen mission of care.  The attitude at the top affects the attitude of every employee.

To start at the executive director level, I learned this week that an awning that magically appeared one hot summer day to shade the favorite bench of one resident came from the director's own home. The attractive, sail-like canvas was adjusted "just so" between a building and a tree to provide maximum protection without making the often restless resident feel trapped.

Regular readers of the Elder Law Prof Blog may have guessed. That sun-worshiping resident was my father, a retired judge.  He liked to hold court on that bench.   

Another resident would often accompany the maintenance man on his daily rounds -- carrying a tool or pushing a cart. That probably slowed the maintenance man down.  But I never heard a complaint.  On "tough days" for that resident, when he wasn't tracking enough to safely accompany the maintenance man, that same employee would gently and kindly guide him by the shoulder back to his cottage.  

One woman, who did not speak English, liked to dance.  At the regular planned musical events, I would see even the shyest CNAs allow this woman to draw them onto the stage to join the entertainers with happy feet. My sister joined her in dancing too.  

Another resident, who became one of my favorites, sadly had aphasia, making it hard for him to find words to express himself.  Instead, he howled.  I listened mornings and nights as those hard-working CNAs would correctly interpret his happy howls -- or his sad howls -- or his "I don't want a shower" howls, without losing patience.

This staff includes people born and raised in the U.S., including several from tribal lands.  But there is always a shortage of CNAs. This particular staff also includes men and women who are immigrants from foreign lands: Mexico, several countries in Africa, the Middle East, eastern Europe, India, Indonesia, and the Philippines.  Many of the caregivers, working 40 hours or more per week, were also caring for disabled relatives in Arizona, or were sending money "home" to support other family members in need.  One caregiver, a permanent U.S. resident, is considering the tough question of whether to return to the country of birth in order to join a spouse currently detained and facing deportation for illegal entry.  Their children, born in the U.S., would become strangers in that foreign land.    

The workers at my father's assisted living center are part of a United Nations of Caregiving.

Continue reading

February 6, 2017 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (2)

Sunday, February 5, 2017

Medicare Observation Status: Latest Ruling from Judge

As mentioned in a recent post, the observation status case was headed back to court. The February 2, 2017 opinion resulted in a favorable decision requiring corrective action. The Center for Medicare Advocacy released the following Court Orders Corrective Action Plan for Government's Noncompliance with Settlement in Jimmo v. Burwell explaining that  the judge has "ordered the Secretary of Health & Human Services to carry out a Corrective Action Plan to remedy the Department’s noncompliance with the Settlement." What's included in this corrective action plan?

The judge ruled that the Corrective Action Plan will include a new CMS webpage dedicated to Jimmo, a published Corrective Statement disavowing the improvement standard, a posting of Frequently Asked Questions (FAQs), and new training for contractors making coverage decisions.  In addition, and significantly, the Court largely adopted the Corrective Statement drafted by plaintiffs, and ordered the Secretary to conduct a new National Call to explain the correct policy.

The opinion is available here.  Great job CMA! (in the interest of full disclosure, I'm on the CMA board)

February 5, 2017 in Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Thursday, February 2, 2017

Got an Opinion on the Future of Medicare? Then Share Your Opinion.

We've heard that Speaker Ryan has a plan to change Medicare, but that the President had made campaign promises about preserving it. So, have an opinion? Should it remain unchanged? Should it be changed? Here's your chance to make your voice heard. AARP is organizing a "thunderclap" campaign, asking those with an opinion share it with the President by Twitter, Tumblr or Facebook and they will all be posted on the same day, February 21, 2017. The website has more information about the specifics on how this works. Don't want to wait until then to make your opinion known? AARP also has a site for folks to contact  Congress that makes it about as simple as can be with a prepared message for those who want Congress to support Medicare . (If you think Medicare should be changed, you may not be able to change the AARP standard message and you will need to email your elected representatives) 

February 2, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, February 1, 2017

Medicare's Improvement Standard: The Saga Continues

Several years ago CMS entered into a settlement in litigation that has become known as the Jimmo case. CMS agreed that the improvement standard wasn't in fact a standard for determining further Medicare therapy coverage and all was good, or so it seemed. Yet, now we learn it's not, according to a recent story in Kaiser Health News. Medicare’s Coverage Of Therapy Services Again Is In Center Of Court Dispute explains

Four years after Medicare officials agreed in a landmark court settlement that seniors cannot be denied coverage for physical therapy and other skilled care simply because their condition is not improving, patients are still being turned away.

So federal officials and Medicare advocates have renewed their court battle, acknowledging that they cannot agree on a way to fix the problem. Earlier this month, each submitted ideas to the judge, who will decide — possibly within the next few months — what measures should be taken.

The settlement was supposed to be the end of the matter, and instead of the improvement standard,  Medicare was to make the decision as follows, "not ... on the 'potential for improvement from the therapy but rather on the beneficiary’s need for skilled care.'” So in August of last year, the judge ordered the parties to get together to "improve" Medicare's educational initiative for those who deal with the claims and staff hotlines,  as well as the ALJs.   The parties reached an impasse, so it's back to court.

Stay tuned.

February 1, 2017 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)