Monday, August 31, 2009
Larry "the Dude" Frolik's article entitled "Long Term Care Insurance: Deal or No Deal" appeared in the Proceedings of the 43rd Annual Heckerling Institute on Estate Planning held at the University of Miami in January 2009. The article is now available for purchase from the Lexis-Nexis store.
Sunday, August 30, 2009
"Critics fret that health care reform would undermine American family values, not least by convening somber death panels to wheel away Grandma as if she were Old Yeller.
But peel away the emotions and fearmongering, and in fact it is the existing system that unnecessarily takes lives and breaks apart families.
My friend M. — you’ll understand in a moment why she’s terrified of my using her name — had to make a searing decision a year ago. She was married to a sweet, gentle man whom she loved, but who had become increasingly absent-minded. Finally, he was diagnosed with early-onset dementia.
The disease is degenerative, and he will become steadily less able to care for himself. At some point, as his medical needs multiply, he will probably need to be institutionalized.
The hospital arranged a conference call with a social worker, who outlined how the dementia and its financial toll on the family would progress, and then added, out of the blue: “Maybe you should divorce.”
“I was blown away,” M. told me. But, she said, the hospital staff members explained that they had seen it all before, many times. If M.’s husband required long-term care, the costs would be catastrophic even for a middle-class family with savings.
Eventually, after the expenses whittled away their combined assets, her husband could go on Medicaid — but by then their children’s nest egg would be gone, along with her 401(k) plan. She would face a bleak retirement with neither her husband nor her savings.
A complicating factor was that this was a second marriage. M.’s first husband had died, leaving an inheritance that he had intended for their children. She and her second husband had a prenuptial agreement, but that would not protect her assets from his medical expenses."
Read more here: http://www.nytimes.com/2009/08/30/opinion/30kristof.html
Friday, August 28, 2009
Via Kaiser Health News:
Just like in earlier attempts to overhaul the American health
system, opponents have turned to scare tactics, a strategy with a
success rate in the history of blocking health reform, NPR
reports. "It's really a case of deja vu," political scientist Jonathan
Oberlander tells NPR. "You hear in today's debate echoes of the past
that extend all the way to the early part of the 20th century."
Back in 1915, as the First World War loomed, opponents linked health reformers to the German emperor, saying it was a plot to take over the United States, he said. In the 1940s, the American Medical Association said reform efforts would pave the way for the communist Red Army. When the Clinton administration attempted reform, insurance companies brought out the Harry and Louise ads to "sow seeds of doubt in the public" (Rovner, 8/28).
CQ Politics has a video fact-checking "some of the claims made by both sides in the health overhaul debate" (Wayne and Satter, 8/28).
"As Congress considers multiple versions of health reform, misunderstanding and falsehoods have crept into the national debate," The NewsHour with Jim Lehrer reports. While President Obama has rejected the "phony claims" that illegal immigrants would receive health coverage, that the federal government would pay for abortions and that the overhaul was a government takeover, more than half of people in a recent poll said they believed each of those claims. A panel of experts (including NPR's Rovner) rebut the claims (Suarez, 8/28).
Thursday, August 27, 2009
The University of Illinois website feature "A Minute With..." has just published an interview with Prof. Dick Kaplan on the end-of-life counseling provision in the health care reform bill. Here's an exerpt:
"Proposed health-care reform has been sidetracked by uproar over a so-called “death panel” provision that some conservatives argue is a step toward euthanasia. But elder law expert Richard L. Kaplan says those end-of-life counseling services are nothing new, and have benefits for both patients and government spending. Kaplan, a law professor and member of the National Academy of Social Insurance, examines the health-care planning tool in an interview with News Bureau Business and Law Editor Jan Dennis.
What exactly is meant by “end-of-life counseling”?
For nearly 25 years, Americans in most states have been able to document the extent of medical interventions they would want if they have impaired mental capacity or are unable to communicate their preferences. These documents are typically called “advance directives” and come in two varieties – living wills, which state that the person does not want certain life-sustaining procedures if he or she has a terminal condition; and health-care proxies or powers of attorney, which designate someone to make care decisions for that person. Discussing which form is most appropriate for a specific patient and what it should contain is often called “end-of-life counseling.”
Read more: http://illinois.edu/lb/article/72/28708
Wednesday, August 26, 2009
Received from Kathryn Tucker:
Compassion & Choices has spent many months planning its October Symposium on End of Life Advocacy. It’s October 13-14 at the National Press Club in Washington DC.The Symposium’s topics could not be more timely, now that the issues have been so shamelessly politicized by opponents of health insurance reform. We are really quite proud of the speakers --- NY Times columnist Jane Brody, former American Cancer Society President Elmer Huerta, --- and a host of other experts and opinion leaders.
The full agenda is available on the Compassion & Choices website and on line registration is up and running. http://www.compassionandchoices.org/symposium
China is trying to move away from the use of executed prisoners as the major source of organs for transplants.According to the China Daily newspaper, executed prisoners currently provide two-thirds of all transplant organs. The government is now launching a voluntary donation scheme, which it hopes will also curb the illegal trafficking in organs. But analysts say cultural bias against removing organs after
About 1.5 million people in China need transplants, but only about 10,000 operations are performed annually, according to the health ministry. The scarcity of available organs has led to a thriving black market in trafficked organs, and in an effort to stop this the government passed a law in 2007 banning trafficking as well as the donation of organs to unrelated recipients. But in practice, illegal transplants - some from living donors - are still frequently reported by the media and the Ministry of Health. Human rights groups have often criticised China for its lack of transparency over organ donation, but critics have focused particular concern on the use of body parts from executed prisoners.
Source/more: BBC, http://news.bbc.co.uk/2/hi/asia-pacific/8222732.stm
Monday, August 24, 2009
This is a must read. Excerpt:
Most doctors do not excel at delivering bad news, decades of studies show, if only because it goes against their training to save lives, not end them. But Dr. O’Mahony, who works at Montefiore Medical Center in the Bronx, belongs to a class of doctors, known as palliative care specialists, who have made death their life’s work. They study how to deliver bad news, and they do it again and again. They know secrets like who, as a rule, takes it better. They know who is more likely to suffer silently, and when is the best time to suggest a do-not-resuscitate order.
Palliative care has become a recognized subspecialty, with fellowships, hospital departments and medical school courses aimed at managing patients’ last months. It has also become a focus of attacks on plans to overhaul the nation’s medical system, with false but persistent rumors that the government will set up “death panels” to decide who deserves treatment. Many physicians dismiss these complaints as an absurd caricature of what palliative medicine is all about.
Still, as an aging population wrangles with how to gracefully face the certainty of death, the moral and economic questions presented by palliative care are unavoidable: How much do we want, and need, to know about the inevitable? Is the withholding of heroic treatment a blessing, a rationing of medical care or a step toward euthanasia?
A third of Medicare spending goes to patients with chronic illness in their last two years of life; the elderly, who receive much of this care, are a huge political constituency. Does calling on one more team of specialists at the end of a long and final hospital stay reduce this spending, or add another cost to already bloated medical bills?
Dr. O’Mahony and other palliative care specialists often talk about wanting to curb the excesses of the medical machine, about their disillusionment over seeing patients whose bodies and spirits had been broken by the treatment they had hoped would cure them. But their intention, in a year observing their intimate daily interactions with patients, was not to limit people’s choices or speed them toward death.
Dick Kaplan's new article, coauthored with two former students, Nicholas Powers and Jordan Zucker, entitled “Retirees at Risk: The Precarious Promise of Post-Employment Health Benefits,” was recently published in the YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS and is available at:
Here's the abstract:
This article examines the increasingly troubled state of employer-provided health benefits for retirees. The availability of such benefits is a major determinant of both the timing of retirement and the financial security of those who retire. Despite the signal importance of these benefits to current and prospective retirees, employers have been steadily eroding their value and in many cases, eliminating these benefits outright. Such actions are often catastrophic for the retirees affected, especially if they are not yet eligible for Medicare.
This article begins by explaining the economic pressures that have precipitated this unfortunate development, including the increasing cost of health care generally. But much of the decline in retiree health benefits is attributable to financial accounting requirements that required employers to disclose the projected costs of these benefits. These accounting requirements have recently been extended to state and local government employers, and another wave of broken promises may lie just ahead.
The article next examines the extensive litigation regarding the erosion and/or termination of retiree health benefits, focusing on the Employee Retirement Income Security Act (ERISA). Claims that retirees have “vested” rights to such benefits are analyzed in both the unionized and nonunionized employment contents, as well as claims of breach of fiduciary duty and estoppel. In short, ERISA has largely failed to protect the reasonable expectations of retirees concerning their post-employment health benefits.
The article then turns to alternative approaches that retirees might consider, including continuation coverage from their former employer, individually obtained health insurance, and health savings accounts. Finding serious problems with each of these approaches, the article considers recent legislative proposals to extend Medicare to early retirees, noting the impact of such an extension on existing employer health benefit programs for retirees and on individuals’ retirement timing decisions.
Sunday, August 23, 2009
Kenny Heglund of the University of Arizona writes:
"While there is a lot about the fact that the opposition lies about section 1233, there is little why it is a terrific idea. As elder law profs I think we can play a role by writing our local newspapers. Below is the letter I just sent in. Further, perhaps someone could write on behalf of our section and send it to the Post or the Times ... maybe with a lot of us signing
I am sure you have your own ideas on this and your own supporting quotes. The one I use from Dr. Christakis is from his book, A Death Foretold (University of Chicago Press, 1999) at page xiv. Another good quote
"Terminal patients in the last six months of their lives still received aggressive treatment, and many of them were in the intensive care unit. A high percentage ... continued to complain of moderate to severe pain."
This one is from Dr. Pauline Chen, Final Exam: A Surgeon's Reflections on Mortality (Vintage Press, 2008) p.71.
In my letter I refer to a video on hospice my students made. Comments welcomed.
Here is the letter:
Say you are a senior, worried about the future. You have heard of advance directives, health care proxies, and hospice. But you need more information. If you have a lawyer, great, but what about your doctor? Probably no luck. The time a doctor spends discussing these crucial topics is lost time - Medicare doesn't pay for the consult. A recent proposal, part of the Health Care Reform, remedies this: doctors will now be paid for their time. That's all it provides: it does not make these talks mandatory nor does it push any alternative; it is most definitely not, as some claim, a "Kill Granny" provision.
It is a "Help Granny" provision.
Many die bad deaths. As Dr. Nicholas Christakis writes in A Death Foretold: "The great majority of Americans die in institutions rather than at home as many would prefer; most die in pain being in the care of health providers; many die alone; and many have deaths that are financially devastating for their families."
Having taught Elder Law for several years, I know that advance planning is critical both for "Ganny" and her family. She needs to know her options. To dump "Granny" to make a political point, a misleading one at that, ain't right.
My Elder Law class produced a 15 minute video on hospice that you might find helpful. See http://www.law.arizona.edu/hospice
Friday, August 21, 2009
Compassion & Choices and four Montana doctors filed their brief with the Montana Supreme Court August 14 in the case of Baxter et al v. Montana. Plaintiff Robert Baxter was suffering from lymphocytic leukemia when the case was filed and died late last year.
The appellees urge the State’s highest court to affirm the lower court’s decision, which found that aid in dying was a fundamental right under the Montana Constitution’s guarantees of privacy and dignity. Compassion & Choices’ Legal Director Kathryn Tucker and well-known Missoula litigator Mark Connell represent the plaintiffs/appellees.
Here are excerpts from the brief:
“Patients will inevitably confront the question of whether to choose aid in dying in different ways. This is as it should be. Because individual lives, deaths and consciences are at stake, each individual bears the consequences of his/her decision. The question before this Court is whether individuals who want aid in dying will be allowed to choose it, or whether the government will be permitted to make the choice for them and flatly ban the option. “
“Deciding how much suffering to endure in the final ravages of terminal illness is without doubt among the most private, personal, and important decisions of a lifetime. The right to choose aid in dying warrants constitutional protection and should not be usurped by the State.”
The Montana Supreme Court will hear oral arguments Wednesday, September 2nd, in Helena. If the Court affirms, it will be the first high court in the nation to find constitutional protection for aid in dying.
Assistant Secretary Greenlee Encourages National Aging Services Network To Stay Informed About Health Insurance Reform
Received from the Administration on Aging:
President Obama is committed to working with Congress to pass comprehensive health insurance reform this year in order to control rising health care costs, guarantee choice of doctor, and assure high-quality, affordable health care for all Americans. All across this country, Americans of all ages are engaged in conversations about the future of health care in the United States and how these reform efforts might affect them, their families and their communities. For those of us in the national aging services network who work on the front lines with seniors and their caregivers, it is important that we stay informed about this critically important topic.
The White House has recently launched a website http://www.whitehouse.gov/realitycheck/ where you can go to find out the latest information about proposals being considered by Congress and get status updates on the progress of this extraordinary undertaking. In addition, the following website http://www.healthreform.gov/ has a comprehensive overview of activities related to health reform. I encourage you to visit these websites at your first opportunity to stay abreast of these issues that are so important to the future of our country.
KFF analysis: Summary of Key Medicare Provisions in H.R. 3200, America’s Affordable Health Choices Act of 2009
Summary of Key Medicare Provisions in H.R. 3200, America’s Affordable Health Choices Act of 2009
This document provides a description of key Medicare provisions of
H.R. 3200, America’s Affordable Health Choices Act, as introduced July 14, 2009,
and notes the amendments to the bill, as
adopted by the House Committee on Ways & Means and the House Committee on
Energy & Commerce. The House Committee on Education & Labor adopted the bill with no amendments to
Medicare-related provisions. The document describes the major provisions
relating to Medicare benefit changes,
Medicare Advantage, the Medicare prescription drug benefit, physician and other
provider payment reforms, and other health system reforms.
The summary will be updated to incorporate changes made throughout
the legislative process, including a side-by-side comparison of Medicare provisions in
this bill and any other House and Senate health reform legislation.
Issue Brief (.pdf)
The summary will be updated to incorporate changes made throughout the legislative process, including a side-by-side comparison of Medicare provisions in this bill and any other House and Senate health reform legislation.
KFF analysis: Key Questions about Changes for Medicaid and Low-Income Individuals: HR 3200 America’s Affordable Health Choices Act of 2009
This brief highlights some key questions about provisions related to Medicaid, the Children’s Health Insurance Program (CHIP), and provisions that affect low-income individuals included in HR 3200, the America’s Affordable Health Choices Act 2009 (the House Tri-Committee Bill). Key elements of the bill that affect Medicaid and low-income individuals include:
• Requirement that individuals have health insurance through a combination of public and private coverage expansions;
• Expansion of Medicaid to a national floor of 133% of poverty which would reduce state-by-state variation in eligibility for Medicaid and also include adults without dependent children who are currently not eligible for the program; expansions would be fully federally financed. Individuals with Medicaid above 133% of poverty would continue to be eligible;
• Increases in Medicaid provider payment rates for primary care services to 100% of the Medicare rates by 2012 with 100% federal financing for the increase;
• Elimination of the CHIP program and the transition of CHIP enrollees to the new health insurance exchange; and
• Subsidies for eligible low-income individuals not eligible for Medicaid to purchase health insurance in a new health insurance exchange.
A more detailed analysis of
these provisions compared to current law is found at the end of the brief.
Issue Brief (.pdf)
Despite the overall decline in poverty rates among older Americans during the past few decades, the likelihood of a woman being poor in retirement increases with age. Older single women and minority women are especially at risk. Retirement income used to depend on social security, pensions, and savings. However, many older women are finding that they need to add work or public benefits or both to move toward retirement security.
- Older Women and Income Security, by Burton D. Fretz, Vicki Gottlich, and Shannon Schmoyer
- Ten Pension Guidelines to Prevent Poverty Among Older Women, by Vicki Gottlich, M. Cindy Hounsell, and Dianna Porter
New Perspectives on Elder Mediation: Evolving Ethics and Best Practices
is the theme of the Summer issue of ACResolution, the quarterly magazine
of the Association for Conflict Resolution. Feature articles include:
A Mediator's Ethical Responsibility in Elder Mediation: What Is at
Stake? Barbara Foxman, Kathryn Mariani and Michele Mathes
Addressing Adult Guardianship and Conservatorship Concerns Through
Mediation: Results of Alaska's Court-Connected Pilot Project. Karen Largent
The Not So Golden Years: Gays and Lesbians Face a Return to the Closet
During Later Life. Ralph Kellogg
Voices and Choices of Elder Adult Dialogue and Mediation: The New York
Model. Alice J. Rudnick
Mediating End-of-Life Decisions: Feeding Tubes and Other Quality of Life
and Care Choices. Louise Phipps Senft and William Senft
The Blame Game: Understanding and Addressing Admissions-Related
Conflicts in a Nursing Facility Setting. Devon Coughlan and Leslie Coughlan
Mediation of Intergenerational Transfers of Business and Family Assets. Edward J. Kopf and Eileen Barker
Copies of the magazine are available for $5 plus shipping and can be
ordered by completing the form at: http://www.acrnet.org/pdfs/Section%20Teleseminar%20Order%20Form.pdf
10:00 a.m. - 4:00 p.m.
Kaiser Family Foundation - Barbara Jordan Conference Center
1330 G Street, N.W.
Washington, D.C. 20005
Please join Retirement USA for a conference to:
- Learn why a new private retirement system is needed;
- Hear about the principles that should underlie a new system; and
- Discuss proposals for a universal, secure, and adequate system for the future.
I've received notices of a number of upcoming elder mediation trainings around the country. These include trainings in Ann Arbor, Chicago, and San Antonio Here's the scoop:
The Center for Social Gerontology presents its Adult Guardianship / Family Caregiver Mediation Training October 1-3, 2009
DON¹T WAIT TO REGISTER!!!
EARLY BIRD RATE ENDS SEPTEMBER 1, 2009!!!
The early bird registration rate for The Center for Social Gerontology (TCSG)¹s Adult Guardianship / Family Caregiver Mediation Training, to be held this year from Thursday, October 1 - Saturday, October 3, 2009 in Ann Arbor, Michigan, is fast approaching on September 1, 2009!
This three-day advanced training is designed for trained, experienced mediators who wish to expand their practice to include mediation of issues or disputes that arise when guardianship over an adult is being considered, and/or when elders and their families are confronted with extremely difficult decisions regarding the care of a vulnerable family member which
can easily lead to family conflict. The training curriculum will address issues such as:
Mediation Preparation and Process
Referral, Intake & Screening
Ability of Parties to Mediate
Role of Attorneys and Other Advocates
Identifying Common Issues
Mediation Skills & Techniques
Ensuring that the Older/Vulnerable Person Has a Voice
Protecting Respondent Rights in Guardianship/Caregiver Cases
Guardianship Law & Practice and Alternatives to Guardianship
Working with Older/Vulnerable Persons Likely to be Involved in These Cases
Setting Up and Operating a Quality Guardianship/Caregiver Mediatio Program.
Registration Form and Payment
Due September 1, 2009: Please go to
http://www.tcsg.org/mediation/2009RegistrationForm.doc to download an
interactive Registration Form.
For questions or more information, please contact me:
Brooke McCreary, TCSG Program Assistant
2307 Shelby Avenue
Ann Arbor, Michigan 48103
Phone: (734) 665-1126
2009 Adult Guardianship / Family Caregiver Mediation Training Site:
2-Day Advanced Training in Elder Mediation: Adult Guardianship and
Family Caregiver Mediation, Dec 1 - 2, 2009 Chicago – Center for Conflict Resolution. For
registration and more information: www.learn2mediate.com/elder
Learn the differences between other types of mediation and elder mediation; inclusion of the older person's voice in the mediation and techniques to achieve that; multiparty mediation; family dynamics; legal issues; and more! At the conclusion of the training, you will be
prepared to organize and perform elder mediations.
This 2-day training covers the following topics:
Differences between elder mediation and other types of mediation;
guardianship/conservatorship law and practice;
Capacity and disability issues;
Legal red flags;
Multiparty mediation and family dynamics;
Deciding who should be present at the mediation
Working with attorneys, court representatives, GAL's and institutional representatives;
Role of community resources, support persons, advocates, and surrogates in mediation;
Ethical standards for elder mediators;
Mental and physical effects of aging, disabilities, and accommodation in mediation;
Societal and participant bias, family and cultural attitudes, and their impact on the mediation process;
Pre-mediation interviews and screening for appropriateness of mediation;
Marketing an elder mediation practice;
Demonstration, video and practice
Trainers for the elder mediation courses are Susan Butterwick, J.D. and Zena Zumeta, J.D., experienced mediators and trainers in family and elder issues with practices located in Michigan and a national training base. They have presented at major national mediation
conferences and given training programs in Elder Mediation from North Carolina to Alaska. Susan is a member of the National Elder Mediation Training Committee, currently engaged in developing standards for elder mediation training. Zena is a former President of the Academy of Family Mediators and the Family Section Council for ACR.
The cost is $425. Discounted rate of $395.00 if registration received prior to November 1, 2009. MCLE credits applied for. There will be an additional $15 charge for MCLE credits. Social Work CEU’s available. To register for the December 1-2, 2009 training in Chicago, go to www.learn2mediate.com/elder Questions or to host a training in your area, contact firstname.lastname@example.org
Elder Mediation in San Antonio, Texas! Don't miss the early bird special on
the Elder Mediation training on September 10th and 11th! Social Workers: 18 total hours of CEUs which includes 3 hours of ethics. Texas Guardians: 20 hours approved CEU with 3 hours of ethics
Manousso Mediation is teaming up with Conflict Connections in San Antonio, Texas, to present this program. Together, Barbara Manousso and Patti Porter, Texas Credentialed Distinguished Mediators, will train mediators, judges, attorneys, and geriatric professionals in methods of conflict coaching and resolution for elder mediations. Guest lecturers include K.T. Whitehead, Certified Elder Law Attorney, and Byron Cordes, Geriatric Case Manager.
Continuing education credits will be available for social workers and certified guardians.
This elder care mediation course will help social workers, geriatric workers, psychologists, attorneys, and nursing home administrators learn how to deal with conflicts that affect the lives of seniors and their families. Course material covers ethics, guardianship, elder law, and mediation skills. This growing field of elder mediation has developed a strong national network, so expand your practice and skill base with the 20 hours of training in San Antonio, starting on September 10th until 11th. Classes meet from 8 AM until 6:30 PM. After
August 15th, registration will be $495. The registration fee includes breakfast, lunch, mid-morning and afternoon snacks, and notebooks with contents. For more information or to register, go to http://www.manousso.us/ElderCareMediation.htm . Or call Barbara Manousso
Forgive the recent lack of postings, but things have been hectic in the Dayton/Hanson household. The next couple of days will produce a flurry of postings. Similar items will, for the most part, be included in a single lengthy posting.
Thanks for your patience when the blog went dark..
Monday, August 3, 2009
Association for Conflict Resolution (ACR) has forms a new Section on Elder Decision-Making and Conflict Resolution
The Association for Conflict Resolution (ACR) has formed a new Section on Elder Decision-Making and Conflict Resolution. The creation of the Section on Elder Decision-Making and Conflict Resolution was unanimously approved by the ACR Board of Directors at its July Board meeting.
The Section will work to foster professional standards, ethics, training standards and practice to promote the maximum effective participation of all persons to achieve informed self-determination regardless of possible age-related or other limitations of involved parties. It also will work to address the potential of ageism or age discrimination by any person (including the practitioner, participants, and others) in the provision of such conflict resolution and decision-making services.
"The formation of this Section demonstrates ACR's interest in responding to new areas of practice," says ACR President James A. Rosenstein. "The need for a home for specialists in elder conflict resolution became clear to me recently when I received elder mediation training. I learned there the additional expertise required for even experienced mediators to be effective in helping to resolve conflicts in which elderly persons are either parties or their interests or rights would be affected by its resolution."
Rosenstein announced that the Section leaders will be Arline Kardasis (email@example.com), Carolyn J. Rodis (firstname.lastname@example.org), and Robert J. Rhudy (email@example.com).
A Section meeting is being planned for the ACR Annual Conference in Atlanta, October 7 - 10, 2009. Watch for details in the August ACR Update.
To join this new Section, please go to Member Center and log in. On the left sidebar, click on the link "Add a Section," and check off "Elder Decision-Making and Conflict Resolution Section." Alternatively, you may call the Member Concierge Center at 202-464-9700, press option 2, and the Membership concierge will help you. Questions also may be e-mailed to sections@ACRnet.org.
Special note: Watch for the Summer issue of ACResolution. The theme is New Perspectives on Elder Mediation: Evolving Ethics and Best Practices.
For those who are not already members of ACR:
You can join online at http://impak.acrnet.org/members_online/members through the secure server or call ACR staff at 202-464-9700 for assistance.