Thursday, June 21, 2018

Boomerang Hospital Admissions and Medicare

Kaiser Health News recently reported on efforts by CMS to crack down on what KHN calls "boomerang" hospital admissions. Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients focuses on the situation where nursing home residents have multiple hospitalizations.

With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.

Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.

One solution implemented by CMS, the story explains, has been to penalize hospitals when the resident is readmitted, "in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records."  In the next few months, CMS will now initiate a program with incentives for nursing homes: "giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission."

Of course, this doesn't mean that a resident will never be hospitalized but hopefully this will make the process and the care better for residents.  The article looks at reasons for the frequent admission problems, noting the causes include ineffective communication between the nursing home and the treating doctors.

This issue is a common one.

Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.

Stay tuned.

June 21, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

The Rhetoric Of Anger in Advocacy

I've been thinking a lot lately about the tone and words used by individuals in advocating for change.  Part of the reason I think about that is many of our students will choose the roles of advocates for change.  

Another, perhaps more obvious impetus for this contemplation is the increasing use of demonization to characterize "others" you disagree with.  In the language of debate, such an approach is an ad hominem attack, where the argument is directed against the person rather than the position they are maintaining.   And it seems the usual adjective to add for that style is to call it a "vicious ad hominem attack."   

I understand anger.  I understand the emotion that can fuel heightened language. But, the plain fact of the matter is, that style often is not effective in achieving change in the law, especially in the courtroom. I get it, that  rationality sometimes isn't effective either.  That's enormously frustrating.  But what I tend to see as a response to vicious ad hominem attacks is for the target to either respond in kind (more shouting, more name calling) or go "underground." It causes the target to double-down on his or her own personal, now equally angry, position.  And courts do not respond well at all to such a style of advocacy.  

As I'm typing these words, I'm thinking about some of the advocacy that is being used by opponents of guardianships.  I see the occasional such comment (sometimes too long to attach to a post) on the Elder Law Prof Blog.   Again, I understand the anger of family members who perceive a loved one to be the victim of a self-dealing agent, whether that bad agent was a guardian, a trustee, someone acting under a power of attorney, or simply someone who was made an accommodation party on a joint account.  The anger is justified.  

But, when the opponents of the bad agents cast an overbroad net against all courts or all judges or, even, all guardians, using, dare I say, "trumpian" adjectives and nouns to characterize all individuals serving in such roles, it just isn't very effective.  It closes the door to change in the law.  At least, that's my 2 cents on the topic.  We need better solutions for instances where individuals did not choose their own trustworthy agents.  

I was struck by a couple of  news stories I read today by individuals who use anger to characterize disease, especially dementia.  Now, here, I think the anger and harsh language as a rhetorical tool is different, and has a different effect.  For example, a recent article described actor Don Cheadle's anger, sorrow, and disbelief following the loss of his mother.  He is described as saying:  

"She went through a real tough spell.  She had dementia and it's just an evil, mean disease.  To watch someone just deteriorate in that way, it's hard to believe."  

Here, even though obviously the disease isn't a sentient being, the characterization of it as evil, as, in essence, an enemy, seems more effective.  The desire might be for an army to rally to oppose the devastation wrought by the disease.  

Just a bit of mid-week musing.  Some of this is probably influenced by being the daughter of a judge who worked 7 days a week for 35+ years, far harder and longer than necessary for his job or any job.  Or, it could be my musing is the result of far too much caffeine as I work on summer law reform projects, and as I try to sort out what arguments are the most likely to be effective.  

June 21, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink | Comments (0)

Wednesday, June 20, 2018

Register Now-Webinar-Elder Homicides

The Elder Justice Initiative at the DOJ has announced a new webinar on July 13, 2018. Here's the information about the webinar:

On Friday, July 13, from 2:00–3:00 p.m. eastern time, the Elder Justice Initiative presents the webinar “The Forgotten Victims: Elder Homicides Part 2, A Prosecutor's Perspective." Please join us as Belle Chen of the Los Angeles County District Attorney’s Office discusses the unique challenges of investigating and prosecuting elder and dependent neglect homicides... This webinar will highlight some of the challenges and common dynamics in these cases through a comparison of two elder neglect cases that went to trial and were presented to juries. This presentation can aid law enforcement in their investigations of complex elder neglect cases and prosecutors in their review, filing, and litigation in criminal court. 

To register, click here

 

 

June 20, 2018 in Consumer Information, Crimes, Current Affairs, Programs/CLEs, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)

New Rules Governing Nursing Facility Care Trigger New Approaches to Advocacy

Eric Carlson, Nancy Stone and Lori Smetanka have joined forces to write an important new guideline for advocacy under the revisions issued by CMS in 2016 for nursing facility care, with an eye towards additional changes likely to occur under the Trump administration.   

After surveying the most important reforms, they advise:

The revised regulations contain both positives and negatives for nursing facility residents and their advocates. The positives include expanded requirements for person-centered care, care planning, and resident choice and participation in health care services. The revised regulations also strengthen the NHRA’s prohibitions against facilities requiring a third-party guarantee of payment or a waiver of legal rights, and protections for residents from improper transfer/discharge. In addition, the regulations have added requirements for a facility grievance official and procedures.

 

It is disappointing, however, that the revised regulations do not require a registered nurse around the clock or a minimum staffing standard. Even though unnecessary restraints are included in the definition of “abuse” and the requirements for drug regimen reviews and reporting of unnecessary drugs were expanded, the revised regulations compromise the focus on ending the misuse of antipsychotic medications.

 

In addition, the Trump administration has proposed a repeal of the ban on predispute arbitration agreements and delayed enforcement remedies for certain Phase 2 requirements. The administration is also considering the repeal or further modification of other revised regulations (e.g., regulations on grievance procedures, quality assurance, and ombudsman discharge notices).

The authors explain the importance of advocacy in this time of change:

Even though CMS and the states are responsible for implementing these regulations, regulation implementation, if left solely to government agencies and providers, is usually scattershot and inadequate. For the revised regulations to truly become the national standard of care, nursing facility residents and their advocates must be prepared to assert resident rights over and over again. Another unfortunate reality is that nursing facilities may be hostile or apathetic toward the revised regulations and the survey agencies can only do so much, given that federal law requires surveys only once a year. For these reasons, it is up to residents, families, and advocates to be knowledgeable about the federal law and make nursing facilities accountable when they fall short.

For the full picture, read Advocating for Nursing Facility Residents Under the Revised Federal Requirements,  published April 2018 in the NAELA Journal, and available online as a PDF.

 

June 20, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, June 19, 2018

Interpreting a Living Will in the ER Setting

Maybe it's just me, but does it seem to you that there are a lot of articles of late about advance directives and end of life issues?  Here's a recent one published by Kaiser Health News.   That ‘Living Will’ You Signed? At The ER, It Could Be Open To Interpretation.

opens with an ER nurse saying DNR because the patient had a living will, but reading the document showed the language to be just the opposite, "'[d]o everything possible,' it read, with a check approving cardiopulmonary resuscitation."  The point is to illustrate the mistake that the existence of a living will automatically means no resuscitation. "Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said [the] medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama."

There's a new report from Pennsylvania, Empowering Patients and Agents to Help Prevent Errors with Living Wills, DNRs, and POLSTs

In 2016, acute healthcare facilities in the Commonwealth reported through the Pennsylvania Patient Safety Reporting System (PA-PSRS) nearly 100 events involving the code status or treatment level of patients. Twenty-nine patients were resuscitated against their wishes. Two patients were not treated when their wishes indicated they should have been. The remaining cases represent near misses that could have affected the patient, but were resolved before harm occurred.

The Pennsylvania Patient Safety Authority is unable to verify whether the do not resuscitate (DNR) orders or physician orders for life-sustaining treatment (POLST) were appropriate, correctly created, or verified prior to these patient safety events occurring in real time.

The Kaiser Health News article details communication missteps and offers that

The problem, Hoffman explained, is that doctors and nurses receive little, if any, training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms, either on the job or in medical or nursing school.

Communication breakdowns and a pressure-cooker environment in emergency departments, where life-or-death decisions often have to be made within minutes, also contribute to misunderstandings, other experts said.

One expert interviewed for the article suggests these missteps are more common explaining his use of hypotheticals where "he has asked medical providers how they would respond to hypothetical situations involving patients with critical and terminal illnesses."  He goes on to explain

He described a 46-year-old woman brought to the ER with a heart attack and suddenly goes into cardiac arrest. Although she’s otherwise healthy, she has a living will refusing all potentially lifesaving medical interventions. What would you do, he asked more than 700 physicians in an internet survey?

Only 43 percent of those doctors said they would intervene to save her life — a troubling figure...Since this patient didn’t have a terminal condition, her living will didn’t apply to the situation at hand and every physician should have been willing to offer aggressive treatment, he explained.

The article offers some suggestions from one expert to avoid these situations: "[m]ake sure you have ongoing discussions about your end-of-life preferences with your physician, surrogate decision-maker, if you have one, and family, especially when your health status changes...  Without these conversations, documents can be difficult to interpret."

June 19, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink | Comments (0)

Senior Savers: Where Reality TV Meets Seniors Looking to Downsize

Bryan Devore, an engaging realtor in California, recently wrote to me to report on his latest venture, a cable television program devoted to showing folks how to consider options for senior living.  After I reviewed the first promotional trailer,  I joked with Bryan about whether his target channel was HGTV, a favorite in my own family (resulting in the fact that now we know all too much about shiplap and sliding barn doors).  Bryan responded by joking that perhaps the Lifetime network was the better target.  

In any event, the concept is now "reality" and the first episode of Senior Savers TV is available.  You can catch the 30 minute episode (with surprisingly interesting commercials for those of us who track senior living marketing topics) here: 


 

June 19, 2018 in Consumer Information, Current Affairs, Film, Housing, Property Management, Retirement, Television | Permalink | Comments (0)

Monday, June 18, 2018

Case Study Using Substitute Decision-Making

The New England Journal of Medicine published recently Substitute Decision Making in End-of-Life Care. The article uses a case study of a hypothetical patient in a very serious condition in ICU who has no advance directive. The case study asks whether to enter a DNR or continue treatment and offers short essays by experts to use as resources in making the decision.  The article then gives the reader a chance to answer DNR or continue treatment and the ability to compare the choice to other readers'.  This is an interesting way to educate on an issue and could be easily adaptable to our elder law classes.

 

June 18, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

In New York, Complainants about Fiduciary Abuse Seek Action by NY Attorney General

One of our good readers sent us an item by CityLimits.org tracking recent complaints made to (and about) the NY Attorney General.  The title of the article is They Say Legal Guardians Ripped Them Off-- and the State AG Let Them.  I've come to expect that when I see an investigative piece on problems with guardians, I will read comments from a range of national advocates, such as Dr. Sam Sugar of Americans Against Abusive Probate Guardianship or Richard Black with the Center for Estate Administration Reform.  Both individuals comment in this particular piece.

There are many challenges ahead for much needed reform efforts, including the fact that different laws can govern different forms of fiduciary relationships.  For example, even though the article focuses in major part on "guardians," a label used to describe individuals or entities appointed by the court to assist an individual deemed incapacitated and unable to handle his or her own affairs without such a court-appointment, the article demonstrates that the problems can arise outside the guardianship arena. 

In the opening tale for the article, the individual in need of assistance, a 31 year old disabled daughter, was apparently the the beneficiary of her deceased father's trust. The father became entangled with an untrustworthy individual shortly before his death, and that person was named the trustee.  The actions by that individual -- described in the article as a "disbarred" lawyer and former state senator -- control much of the dynamic.  It is not clear from the article whether the daughter's parents were estranged before the death of her father, thus sidelining the mother from accessing the trust in trying to help their daughter.  Guardians later appointed by court for the daughter reportedly contributed to the costs for the estate. Yet key allegations of abuse focus on the actions of the alleged untrustworthy trustee, who was selected for this fiduciary role by the father, not the court. 

The article reports on this as an example where the AG has allegedly declined to intervene following reports of fiduciary abuse.

Guardianship reform is important and, thank goodness, is ongoing in many states.  But true reform is needed in the hearts and minds of abusive individuals in a variety of financial caregiving relationships, not just guardianships.  The challenges for courts and law enforcement officers, including AGs and other prosecutors, will only grow without a stronger ethical commitment at the core.

June 18, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, June 15, 2018

Even Creators of Super Heroes Can Need Protection . . . from Elder Abuse

Sad news is emerging from Los Angeles that Stan Lee, the legendary comic book author, film producer, Marvel Comic magnate and occasional actor (often with brilliant, subtle cameos) went to court this week.  He was seeking a temporary restraining order against Keya Morgan, sometimes described as a business partner and  long-time manager, who reportedly had been serving as a caregiver for Lee after the death of his wife last year.  Stan Lee is 95 and the grounds alleged in the petition include "elder abuse." The court granted Lee a temporary order on June 13, and scheduled a further hearing for July.  The defendant denies all charges.

Here are additional details from CNN Entertainment, including a collage of clips, sometimes sadly ironic given the charges,  from some of Mr. Lee's appearances in films over the years. 

June 15, 2018 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 14, 2018

The Evolution of Email Scammers: Moving from Granny, to Granny's Lawyers and Financial Companies as Their Targets

In my Elder Protection Clinic days, I met with family members of older adults victimized by off-shore scammers.  In one notable case, the older mother,  normally a savvy woman about her personal finances, had succumbed to the flattery of someone posing as a  financial advisor, who offered her various new "investments."  He knew just how to work her, appealing to her "business acumen," using internet maps to learn about her neighborhood and thus to make it seem his office was in a building near her bank in a suburb of Pittsburgh.   Even after her daughter, with the help of a legitimate financial advisor who caught the unusual activity on the mother's accounts, shut down any easy means of access to her mom, the mother continued to believe the perpetrator was just bad at financial advice, and not totally corrupt.   

The elderly mother's  judgment on who to trust was impaired, but the impairment was specific and hard to recognize because she otherwise functioned fairly well.  The combination of the perpetrator's flattery, his appeal to her once-strong financial skills, and the fact that she was lonely, trapped in her house as her physical strength was waning, all contributed to the success of the scam.  It all began with a single email.

A recent announcement by the FBI of a coordinated law enforcement effort to disrupt international scammers reveals how the scamming industry has evolved. The FBI explains:

Operation WireWire—which also included the Department of Homeland Security, the Department of the Treasury, and the U.S. Postal Inspection Service—involved a six-month sweep that culminated in over two weeks of intensified law enforcement activity resulting in 74 arrests in the U.S. and overseas, including 42 in the U.S., 29 in Nigeria, and three in Canada, Mauritius, and Poland. The operation also resulted in the seizure of nearly $2.4 million and the disruption and recovery of approximately $14 million in fraudulent wire transfers.

 

A number of cases charged in this operation involved international criminal organizations that defrauded small- to large-sized businesses, while others involved individual victims who transferred high-dollar amounts or sensitive records in the course of business. The devastating impacts these cases have on victims and victim companies affect not only the individual business but also the global economy. Since the Internet Crime Complaint Center (IC3) began formally keeping track of BEC [business e-mail compromise] and its variant, e-mail account compromise (EAC), there has been a loss of over $3.7 billion reported to the IC3.

 

BEC, also known as cyber-enabled financial fraud, is a sophisticated scam that often targets employees with access to company finances and trick them—using a variety of methods like social engineering and computer intrusions—into making wire transfers to bank accounts thought to belong to trusted partners but instead belong to accounts controlled by the criminals themselves. And these same criminal organizations that perpetrate BEC schemes also exploit individual victims—often real estate purchasers, the elderly, and others—by convincing them to make wire transfers to bank accounts controlled by the criminals.

 

Foreign citizens perpetrate many of these schemes, which originated in Nigeria but have spread throughout the world.

Law firms were among the most frequent targets of the scammers, who posed as clients to access funds held in the law firms' trust accounts.  For more on the industry, read "It's Time to Stop Laughing at Nigerian Scammers -- Because They're Stealing Billions of Dollars,"  from the Washington Post.    

June 14, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, International, Property Management | Permalink | Comments (0)

Tuesday, June 12, 2018

Medicare Trustees Release Bleak News on Trust Fund

The Medicare Trustees have released their 2018 annual report, which is chock-full of empirical data.  Reporting on this, the New York Times puts things in perspective with their story:Medicare’s Trust Fund Is Set to Run Out in 8 Years. Social Security, 16. This is less time than was reported  last year, as the story explains:

The Medicare trust fund will be depleted in 2026, the administration said. By contrast, the government said last year that the trust fund would be exhausted in 2029.

In a companion report, federal officials said the Social Security Trust Funds for old-age benefits and disability insurance, taken together, could be depleted in 2034, the same year projected in last year’s report. The fund that helps tens of millions of retirees is expected to be depleted a year earlier than projected last year, while the outlook for the disability trust fund is more favorable.

A good economy doesn't seem to be enough to extend the programs' solvency, according to the article:

The report said the less favorable outlook for Medicare’s hospital trust fund resulted from “adverse changes” in program income and costs. Income to the Medicare fund is expected to be lower than estimated last year because of “lower payroll taxes attributable to lowered wages in 2017 and lower levels of projected gross domestic product,” the Treasury said in a “fact sheet” accompanying the report.

At the same time, it said, outlays from Medicare’s hospital trust fund “are expected to be higher than last year’s estimates due to higher-than-anticipated spending in 2017, legislation that increases hospital spending” and higher payments to private Medicare Advantage plans.

The Trustees report explains why the trust fund's time line has sped up:

The estimated depletion date for the HI trust fund is 2026, 3 years earlier than in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years HI income is projected to be lower than last year’s estimates due to (i) lower payroll taxes attributable to lowered wages for 2017 and lower levels of projected GDP and (ii) lower income from the taxation of Social Security benefits as a result of legislation. HI expenditures are projected to be slightly high er than last year’s estimates, mostly due to higher than expected spending in 2017, legislation that increased hospital spending, and higher Medicare Advantage payments .

The full Trustees' report is available here.

June 12, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Social Security | Permalink | Comments (1)

Monday, June 11, 2018

AARP's 2018 Where We Live: Order Now!

AARP's 3rd edition (2018) of Where We Live: Communities for All Ages is available for pre-order now.  You can request one hard copy free, following these instructions

1. Email Fulfillment@AARP.org with the subject line: Where We Live 2018

2. In the email body, include:

  • your name
  • street address 
  • town/city, state, zip code
  • publication number D20439

Bulk orders may also be possible. If you prefer to read the report online, a link to the pdf of the report will be available on June 13, 2018, here.

June 11, 2018 in Books, Consumer Information, Current Affairs, Housing, Statistics | Permalink | Comments (0)

Aging: "The One Shark We Cannot Escape"

My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of  GPSolo,  the ABA journal for solo, small firm, and general practitioners.  Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns.  I enjoyed her use of classic lines from the movie Jaws.  

My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
 
 
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
 
 
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
 
 
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
 
The full article is currently behind a paywall on the ABA website. For more of Linda's wise words, it is worth tracking down a copy of An Elder Care Lawyer's Story.  It is in Volume Issue No. 2 (March/April, 2018) of GPSolo.  It is also available on Westlaw, although, of course, that's another paywall.   

 

June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, June 8, 2018

Guardianships According to John Oliver

John Oliver, the star of Last Week Tonight focused on guardianship on the June 3, 2018 show.  The segment focused quite a bit on some of the abuses that have been reported recently in the press. But, to Mr. Oliver's credit, he notes that sometimes, despite a person's efforts, a guardianship is needed. He provides suggestions for improving the system and for individuals on planning to minimize the chances of a guardianship going wrong. There is some good info in the segment, and he makes several important points, but in a comedic and satirical format.

The link to the segment is here.  Be sure to watch through to the end, to see cameos from several celebrities offering advice on planning for incapacity (although they do get off track quite a bit) including health care powers of attorney and DPOAs. And who wouldn't want Tom Hanks to be their health care agent! (You have to watch the last bit to get that reference). Caveat: there is some "salty" language used throughout the segment.

June 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Television | Permalink | Comments (1)

Filial Friday: Using Cultural Norms to Explore Public Policy on Elder Care

Duke University Law graduate and 2018-19 Bristow Fellow H. Hunter Bruton uses filial support laws in China and contrasting government policies in Japan to explore public policy choices affecting the relative responsibilities of family and government to provide care for aging adults. The author's 2018 article for the University of Minnesota Law Review begins:

This Essay aims to fill that gap by formulating policy recommendations from the lessons of China and Japan--two countries that have taken divergent approaches to facilitating familial and communal eldercare. Conventional wisdom paints cultural portraits with a broad brush: inescapable forces fight against familial and communal eldercare in the West, while Eastern cultures revere the elderly. But cultural ideals and characterizations do not always accord with reality. Similar to the United States, cultural and societal trends in both China and Japan have resisted government efforts to place the eldercare burden on families and communities. This Essay explores how each government’s response has altered eldercare practices and elucidates general principles applicable to the American-eldercare context.

 

Part I begins by defining eldercare and explaining the benefits of familial and communal eldercare. It concludes with a brief survey and analysis of familial and communal eldercare’s past, present, and future in America. With the goal of increasing familial and communal eldercare in mind, this Essay turns towards two differing international examples. Part II scrutinizes China’s solution--mandating familial and communal eldercare to alleviate government costs. Part III analyzes Japan’s approach--institutionalizing encouragement of familial and communal eldercare. Each Part also evaluates American analogs, and possible reform opportunities in the United States. An all-inclusive assessment and comparison would require empirical studies and elaboration beyond this Essay’s scope. Instead of purporting to meet these demands, this Essay intends to chronicle the successes and shortcomings of China and Japan and give American policymakers a better understanding of pertinent considerations in formulating eldercare policy.

For more, read Improving Familial and Communal Eldercare in the United States: Lessons from China and Japan.

June 8, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)

Thursday, June 7, 2018

BBB: Sweepstakes & Lottery Scams

The Better Business Bureau recently released a new report, Sweepstakes, Lottery and Prize Scams. So why, you ask, am I writing about this report?Because of this:

BBB found these frauds concentrate disproportionately on older people, who suffer the largest losses by far. A vast worldwide industry of sweepstakes mailings specifically targets older victims. Major law enforcement efforts are focused on the millions of deceptive mailings that have flooded the mailboxes of seniors across the country. In addition to money loss, victims often are emotionally devastated when they realize they have been defrauded. Some have even resorted to committing suicide.

In particular, the report offers data for the past 3 years by age group and shows the number of complaints by age and the amount of losses (and the total is staggering). The report ponders why elders are targets, offering

While some studies suggest older consumers are somewhat less likely to be fraud victims than the general population, perhaps because they have more life experience to guide them, there is evidence suggesting they are more likely to become victims of sweepstakes fraud. Complaint data shows more than half of victims are over 60, and those over 70 years old account for more than two thirds of the losses related to this scheme.

Why is this? It is speculated that the fraudsters hope to find victims with mild cognitive impairment, dementia or Alzheimer’s disease. These people often continue sending hundreds of thousands and even millions of dollars to fraudsters. A retired college president sent tens of thousands of dollars to scammers. CNN reported that an older man suffering from Alzheimer’s sent all of his funds to scammers and then committed suicide when the prize money never came. A San Diego TV station explains how one senior victim was defrauded.

In addition, seniors may simply have more money and may have been at the same address, with the same phone number, for a longer time and therefore may be easier to locate.

The 16 page report offers insight onto scams from Jamaica, Costa Rica and social media, provides profile stories of some victims and perpetrators, and offers suggestions and recommendations with contact info for agencies that handle cases of scams and frauds.

There is a lot of information packed into this 16 page report. Check it out!

June 7, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, International, Other, Statistics | Permalink | Comments (0)

Michigan Bar Journal Issue Explores the Intersection of Elder Law and Disability Law

A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues.  The January 2018 issue includes:  

Introducing the theme of the issue, attorney Christine Caswell writes: 

While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with  disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.

June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 6, 2018

Doctors' Conversations with Patients About Aid-in-Dying

Earlier this week I posted an update on California's aid-in-dying law.  I was interested in this article published in the New England Journal of Medicine, Beyond Legalization — Dilemmas Physicians Confront Regarding Aid in Dying.

Noting that doctors in jurisdictions where aid-in-dying is lawful are will need to have conversations with patients making the request, the author suggests

Physicians can start by clarifying what patients are asking and why. Some ways in which patients might raise the topic of PAD are listed in the box. Not every question about PAD is a request for assisted suicide. Patients might be seeking information, talking through concerns, expressing distress, or trying to ascertain the physician’s views. To clarify the patient’s motivation, physicians might say, “I’ll be glad to answer that question, but first please tell me what led you to ask.”

The author offers some examples of how patients might raise the issues with their doctors and suggests the next step for doctors is to

explore patients’ concerns and identify and address their palliative care needs, regardless of the physicians’ own views or the legal status of PAD where they practice. Discussions could cover patients’ physical symptoms; psychosocial, existential, and spiritual suffering; hopes and fears; and goals of care. All options for end-of-life care should be discussed, including palliative and hospice care and palliative sedation.

It’s also important for physicians to think through what actions they’re willing to take. Both physicians who support PAD and those who oppose it should try to relieve patients’ multidimensional concerns and distress. After comprehensive palliative care is intensified, 46% of patients who have requested PAD change their minds. (citations omitted).

The author recommends the doctors consider the parameters of when they would participate in medical-aid-in-dying, offering that "perceived loss of autonomy and dignity is now a more common reason for requesting PAD than inadequate pain control." (citation omitted). The author also discusses issues that may occur from a doctor's lack of experience in the area and potential adverse outcomes and counseling families about them. The author also offers some comments for doctors who are opposed to medical aid-in-dying  and concludes with this advice: "[r]esponding to inquiries about PAD is new territory for most physicians. To fulfill their obligations to patients and be true to their own values, physicians should think through how they will respond to the challenges raised by these conversations."

 

June 6, 2018 in Advance Directives/End-of-Life, Consumer Information, Health Care/Long Term Care, Other, State Statutes/Regulations | Permalink | Comments (0)

Dax, France -- a Prototype Village for Residents with Dementia?

From Ben Mulford, a law graduate working at the Iowa Department on Aging, comes an interesting description of a French village designed to give residents who have Alzheimer's Disease as much freedom and normalcy of life as possible, in a safe setting. Map Dax France

Work has begun on France's first "Alzheimer's village” where patients will be given free rein without medication in a purpose-built medieval-style citadel designed to increase their freedom and reduce anxiety. 

 

Residents of the village in Dax, southwestern France, will be able to shop in a small supermarket, go to the hairdressers, local brasserie, library, gym and even a little farm.  They will live in small shared houses designed to reflect their personal tastes and in four districts reminiscent of the southwestern French region between forests and the seashore.

 

While it may sound similar to a typical residential complex, the inhabitants are all men and women suffering from Alzheimer's,  the commonest cause of dementia. . . . 

 

The village is the brainchild of the late Henri Emmanuelli, a former Socialist minister and local MP who launched the project after reading about a Dutch gated model village in Weesp, Netherlands, seen as a pioneering care facility for elderly people with dementia.

 

Residents are confined to the village for their own safety but are allowed to move around freely inside and are watched over by plain-clothed medical staff. The staff don't treat patients, they care for residents, they say.
 
Interesting details include the plans for researchers "cohabiting" with residents, and using a high ratio of live-in carers and volunteers to stage activities.   The article makes the amusing (worrying?) comparison to the plot of The Truman Show, a movie where a key resident, played by Jim Carrey, was living in a fake town.    
 
Will this be cost effective?   The projection is described as "largely funded by the region," and the prediction is it will "only cost patients €66 per day, roughly the same as the rate for a traditional nursing home in France."  
 
I'm a bit skeptical about the "medieval" citadel design as being comforting.  I doubt if residents would be that old.  But, perhaps it would enhance a vacation feel to the location.  I know a resident of a dementia care community, one that follows a village concept on a smaller scale, and when the misting system is operating to cool the exterior porches for all the cottages, she thinks she's at a hotel on the coast of California.  That is a nice alternative to reality -- Arizona in the summertime.  Plus, ambiance of the location is important to attracting and keeping workers, and to make family members and friends feel relaxed and welcome, too.
 
Thank you, Ben, for sharing this interesting piece.  For more, read France Starts Work on Revolutionary 'Alzheimer's Village' Where Patients Roam Almost Free, from The Telegraph

June 6, 2018 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, International | Permalink | Comments (0)

Tuesday, June 5, 2018

Thank you Professor Frolik

Professor Larry Frolik is a rock star, plain and simple. If you ask anyone about the development of elder law, especially in law schools, Professor Frolik's is the first name coming to mind. His contributions to the field are immense and so important.  I was saddened to learn in the spring semester that he was retiring at the end of said semester. Serious bummer. But, good news arrived in the form of an email from him late last week. Although he's retired, he reported that he will keep his office at the College of Law at U. Pitt and also his email address. I suspect he'll continue to be involved in the field and for that possibility, I am extremely grateful. Join me by sending Professor Emeritus Frolik an email thanking him for all of his guidance, leadership and contributions to getting the field,and all of us academics, to where we are today!  Thank you Professor Frolik!!!

June 5, 2018 in Consumer Information, Current Affairs, Other | Permalink | Comments (0)