Tuesday, April 19, 2016
I recently caught a rebroadcast of a Terry Gross interview -- from early 2015 and linked here -- with Dr. Frances Jensen, a neuroscientist from the University of Pennsylvania, on the "teenage brain." It was fascinating, especially as Dr. Jensen explained the latest thinking on trauma on the younger brain, and the potential for alcohol and drug use -- both illegal and legal -- to be especially significant to the still developing teenage brain. Given that we need those brains to last for a very long time, the broadcast seems relevant to our Elder Law Prof Blog topics.
This insulation process [from myelin] starts in the back of the brain and heads toward the front. Brains aren't fully mature until people are in their early 20s, possibly late 20s and maybe even beyond, Jensen says.
"The last place to be connected — to be fully myelinated — is the front of your brain," Jensen says. "And what's in the front? Your prefrontal cortex and your frontal cortex. These are areas where we have insight, empathy, these executive functions such as impulse control, risk-taking behavior."
This research also explains why teenagers can be especially susceptible to addictions — including drugs, alcohol, smoking and digital devices.
And as to that last item on the list -- digital devices -- Dr. Jensen emphasized her concerns about constant stimulation, especially when it lasts into time meant for sleeping. The intense light alone may be interfering with with sleep and brain development. She explains:
First of all, the artificial light can affect your brain; it decreases some chemicals in your brain that help promote sleep, such as melatonin, so we know that artificial light is not good for the brain. That's why I think there have been studies that show that reading books with a regular warm light doesn't disrupt sleep to the extent that using a Kindle does.
I'm from a generation that didn't pay much attention to closed head injuries -- indeed, I think we more or less thought of "mild concussion" as a right of passage for young athletes. Only in the last few years are we beginning to accept the connection between such injuries and later brain degenerative processes. Now, even as we're getting better about physical risks from sports, we need to work harder to avoid the almost round-the-clock effects of our computerized lives.
Dr. Jensen closed the interview with sound advice for everyone:
GROSS: We are out of time, but I just want to ask you if there's any quick tip you can give us to preserve our brain health - something that you would suggest that adults do?
JENSEN: I think [take] time to reflect on what you've done every day, to underscore for yourself the most important things that happen to you that day and to not respond to conflict - to try to not respond to conflict in the midst of your working environment, for instance, because it will color your efficacy.
For more, look for Dr. Jensen's book: The Teenage Brain: A Neuroscientist's Survival Guide to Raising Adolescents and Young Adults.
Wednesday, April 13, 2016
I ran across a couple of articles recently about hoarding. We all have "stuff" and the older we get, the more "stuff" we may have as we accumulate a lifetime of memories. Does that mean we are hoarders? According to the article in the Washington Post, Hoarding is a serious disorder — and it’s only getting worse in the U.S.,
While the stockpiling of stuff is often pinned on America’s culture of mass consumption, hoarding is nothing new. But it’s only in recent years that the subject has received the attention of researchers, social workers, psychologists, fire marshals and public-health officials.
They call it an emerging issue that is certain to grow with an aging population. That’s because, while the first signs often arise in adolescence, they typically worsen with age, usually after a divorce, the death of a spouse or another crisis.
So you have a lot of stuff. And maybe you are disorganized (I once had someone tell me people do two kinds of organizing, some are "pilers" and others are "filers"). Does that mean you are a hoarder? Not necessarily, according to the article, because "[h]oarding is different from merely living amid clutter, experts note. It’s possible to have a messy house and be a pack rat without qualifying for a diagnosis of hoarding behavior. The difference is one of degree. Hoarding disorder is present when the behavior causes distress to the individual or interferes with emotional, physical, social, financial or legal well-being."
The article offers some interesting insights into hoarding and the research (such as it runs in families) but it isn't until recently that it's been thought of as a brain disorder. Not only may hoarding have lacked attention in the past, it's one of those situations where the person may not know to seek treatment and the response requires a multi-disciplinary approach. The article has a lot of good information and is insightful in covering the issues.
Then look at this article in Huffington Post's Post 50, 5 Signs That Someone You Love May Be A Hoarder where one expert is quoted as predicting about 4 million people in the U.S. are hoarders. "Hoarding ... is associated with a number of things including difficulty processing information, the inability to make decisions when confronted with a large amount of information and a failure to categorize things — meaning you can’t see the commonality of objects and they instead all look unique to you." This article offers 5 signs that someone is a hoarder, including constant attendance at garage sales and swap meets, never inviting visitors to the person's home, never giving anything away, keeping every scrap of paper and getting upset at the suggestion of discarding possessions. Sound like anyone you may know?
Thursday, April 7, 2016
The Journal of American Medical Association (JAMA) Network, JAMA Psychiatry ran an article about a study looking at depression and dementia. Trajectories of Depressive Symptoms in Older Adults and Risk of Dementia considers that "[d]epression has been identified as a risk factor for dementia. However, most studies have measured depressive symptoms at only one time point, and older adults may show different patterns of depressive symptoms over time." The study came to the conclusion that a time line of consideration of a patient's depression may give a better picture of the patient's future potential for dementia ("Older adults with a longitudinal pattern of high and increasing depressive symptoms are at high risk for dementia. Individuals’ trajectory of depressive symptoms may inform dementia risk more accurately than one-time assessment of depressive symptoms.")
Tuesday, April 5, 2016
a statistical resource for U.S. data related to Alzheimer’s disease, the most common cause of dementia, as well as other dementias. Background and context for interpretation of the data are contained in the Overview. This information includes descriptions of the various causes of dementia and a summary of current knowledge about Alzheimer’s disease. Additional sections address prevalence, mortality and morbidity, caregiving, and use and costs of health care, long-term care and hospice. The Special Report discusses the personal financial impact of Alzheimer’s disease on families.
The costs of caring for a relative or friend with Alzheimer’s disease or another dementia can have striking effects on a household. These costs can jeopardize the ability to buy food, leading to food insecurity and increasing the risks of poor nutrition and hunger. In addition, the costs can make it more difficult for individuals and families to maintain their own health and financial security. Lack of knowledge about the roles of government assistance programs for older people and those with low income is common, leaving many families vulnerable to unexpected expenses associated with chronic conditions such as Alzheimer’s and other dementias. Better solutions are needed to ensure that relatives and friends of people with dementia are not jeopardizing their own health and financial security to help pay for dementia-related costs.
Thursday, March 31, 2016
A friend sent me several recent resources about elders with dementia. The Hospice and Nursing Home Blog published a video on Doctors’ End-of-Life Language, Impact on Patient-Caregiver Decisions. The Agency on Healthcare Research and Quality published Nonpharmacologic Interventions for Agitation and Aggression in Dementia. The pdf of the article is available here. Finally, in February, 2016, this article, Palliative care of patients with advanced dementia was published in UpToDate (which is "an evidence-based, physician-authored clinical decision support resource....")
Thanks to my friend Pamela Burdett for sending me the links to these 3 publications.
Monday, March 28, 2016
The Washington Post ran an article on March 17, 2016 about the work on Alzheimer's researchers at MIT have been doing . MIT scientists find evidence that Alzheimer’s ‘lost memories’ may one day be recoverable explains that "[a] new paper published Wednesday by the Massachusetts Institute of Technology's Nobel Prize-winning Susumu Tonegawa provides the first strong evidence of this possibility and raises the hope of future treatments that could reverse some of the ravages of the disease on memory." The research and results were featured in an article in Nature The abstract explains
Alzheimer’s disease (AD) is a neurodegenerative disorder characterized by progressive memory decline and subsequent loss of broader cognitive functions. Memory decline in the early stages of AD is mostly limited to episodic memory, for which the hippocampus has a crucial role. However, it has been uncertain whether the observed amnesia in the early stages of AD is due to disrupted encoding and consolidation of episodic information, or an impairment in the retrieval of stored memory information. Here we show that in transgenic mouse models of early AD, direct optogenetic activation of hippocampal memory engram cells results in memory retrieval despite the fact that these mice are amnesic in long-term memory tests when natural recall cues are used, revealing a retrieval, rather than a storage impairment. Before amyloid plaque deposition, the amnesia in these mice is age-dependent, which correlates with a progressive reduction in spine density of hippocampal dentate gyrus engram cells. We show that optogenetic induction of long-term potentiation at perforant path synapses of dentate gyrus engram cells restores both spine density and long-term memory. We also demonstrate that an ablation of dentate gyrus engram cells containing restored spine density prevents the rescue of long-term memory. Thus, selective rescue of spine density in engram cells may lead to an effective strategy for treating memory loss in the early stages of AD.
(citations omitted). A subscription or fee is required to access the full article.
Monday, March 21, 2016
There was an update recently in the litigation concerning the capacity of Sumner Redstone to change the agent under his health care directive. The case starting making the papers last fall. The New York Times ran an article on November 25, 2015, Court Filing Challenges Competence of Sumner Redstone. This article noted that a prior companion of Mr. Redstone filed suit claiming that she "was improperly removed on Oct. 16 from control of an advance health care directive that gave her authority over his health decisions." The article summarizes some of the allegations made in the petition by the companion. A series of other articles followed, two of which are referenced here.
The second article referenced here ran in the Times on February 29, 2016. Sumner Redstone Competency Case Will Go Forward notes that the case is scheduled for trial in May of 2016. The 21 page ruling discussed in the article outlines the two sides' dispute. The article notes that Mr. Redstone was at one time estranged from his daughter, although the article indicates she notes a repair of the relationship. The article quotes the judge: "[d]uring the hearing, Judge Cowan remarked on Mr. Redstone’s notable absence from the legal battle. Notoriously outspoken and combative at his prime, Mr. Redstone has not appeared before the court or submitted a statement of his own. “There are a lot of things that have been said about what Mr. Redstone wants,” Judge Cowan said, “'but unfortunately I have no declaration from him.'”
The third article, published March 18, 2016 in the New York Times gives an update. Sumner Redstone’s Medical Records to Stay Private, Judge Rules reports that some 15 documents will be unsealed but the rest remain confidential. The judge explained that "the medical records would remain sealed because the case was a personal matter centered on Mr. Redstone’s medical issues, not a case involving his public business dealings." The trial is scheduled for May 6 and depositions will be taken in April.
There are a number of other articles reporting this story for those who are interested in learning more about this case.
Sunday, March 20, 2016
We have previously written about the topic of elder inmates and the implications for prisons with the graying of the prison population. Here is one more story on the topic, published March 17, 2016. Pew Charitable Trust's Stateline (which "provides daily reporting and analysis on trends in state policy....") ran the story, Elderly Inmates Burden State Prisons.
Nearly every state is seeing that upward tick in elderly state prisoners. In Virginia, for example, 822 state prisoners were 50 and over (corrections officials usually consider old age for prisoners to begin at 50 or 55) in 1990, about 4.5 percent of all inmates. By 2014, that number had grown to 7,202, or 20 percent of all inmates.
For state prisons, the consequence of that aging is money, more and more of it every year. Health care for aging prisoners costs far more than it does for younger ones, just as it does outside prison walls. Corrections departments across the country report that health care for older prisoners costs between four and eight times what it does for younger prisoners.
In terms of reducing the number of elder inmates, according to the study, some states are using diversion programs, early release or compassionate release. We all have heard about increasing longevity, but that doesn't necessarily explain the rise in elder inmates. The story notes that correctional personnel offer two factors to explain this rise: "[o]e is a steady increase in the rate of older adults entering prison. The second, and more potent, factor is changes enacted in the get-tough-on-criminals 1990s that resulted in longer prison sentences."
Knowing about the physical limitations some may have as they age, one can only imagine the accommodations prisons have had to make, including the use of "ramps and shower handles and ... other physical modifications. Many prisons have had to create assisted living centers with full-time nursing staffs.... In addition, at least 75 U.S. prisons ..., provide hospice services for dying prisoners...."
One prison mentioned in the story has an ALF, but the waiting list is such that prisoners must need assistance with 2 or more ADLs to be considered. Poor health when entering prison is not unusual. And being old and in prison may be even tougher than for younger inmates.
Prison is a particularly treacherous place to get old. Getting to a top bunk is difficult for many aging prisoners, as is climbing stairs. Hearing loss, dementia and general frailty can make it difficult to comprehend or obey rules. And being infirm in an institution full of young predators can make older prisoners vulnerable. “If there’s an old lion or gazelle... the young ones are going to take advantage.”
Once they get out, finding a place to go becomes another challenge according to the article. Some states have taken different approaches to deal with the graying prison population, from financing the facilities that provide the needed care (such as a dementia unit in the prison) to contracting with a private facility to provide the care to "geriatric conditional release."
And what about the likelihood of reoffending? "Studies have found that older ex-offenders are less likely than younger ones to commit additional crimes after their release. But politicians and the public don’t seem willing to release former murderers, rapists and sex offenders, even though they are decades removed from their crimes and physically incapable of repeating them...."
Thursday, March 17, 2016
To follow up on an earlier Elder Law Prof Blog post about recently enacted "visitation rights bills," we note that the Los Angeles Times has reported on advocacy efforts by high-profile children such as Catherine Falk, daughter of actor Peter Falk, and Kerri Kasem, daughter of Casey Kasem, in support of similar legislation in other states:
Though Falk and Kasem work independently, they've become a powerful one-two punch for reforming visitation laws, stumping for change in more than 30 states. Falk says her proposed legislation is now being considered in 10 states; Kasem's bill has already been adopted in three — California, Iowa and Texas.
The two agree their efforts are getting notice because of their celebrity fathers, and have little problem with such an advantage. "This isn't the Casey Kasem Bill, or the Mickey Rooney Bill, or the B.B. King Bill," Kasem said, referring to other personalities who went through similar elder battles. "It's the Visitation Rights Bill, and it affects thousands in the U.S."
The comments posted in reaction to the article are also interesting, with some pointing out that in both the Kasem and Falk families, the disputes involved women married for decades to the celebrities in question. Others point to the question of how ordinary families cope with these kinds of access issues, especially without the money or time to pursue rulings by courts.
March 17, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, March 10, 2016
The Gerontological Society of America has released the latest issue of its e-newsletter from the National Academy on an Aging Society. The March 2016 Public Policy & Aging Report is focused on elder wealth, cognition and abuse. As the forward explains
This edition of Public Policy & Aging Report is the fourth coproduced issue between the National Academy on an Aging Society and Age UK in 4 years. It comes at a prescient moment and deals with an increasingly recognized and important challenge: the impact of cognitive decline on the financial health of older people. Age UK has, for many years, been interested in cognitive aging and is recognized as an authority in this area. We were participants in the G7 Summit on Dementia, we contributed to the many G7 legacy meetings, and we were members of the 2014 World Innovation Summit on Health (WISH) dementia working group. In October 2015, we were cofounders of the Global Council on Brain Health, working with our partner in the United States, AARP. We also are very pleased to be hosting the World Economic Forum symposium on “Ageing, Cognitive Decline and Impact on Banking and Insurance” in London on February, 2016. In research, we pioneered one of the world’s leading studies on cognitive aging at the University of Edinburgh, the “Disconnected Mind,” a longitudinal study that is revealing the secrets of cognitive performance and age, in a way in which cross-sectional studies cannot.
We also have been partners in some of the United Kingdom’s leading research on elder financial abuse, notably with Brunel University in London. Our concern in all these endeavors is not only to generate evidence but also to use this knowledge and apply it to the benefit of our aging populations. Our mission is to improve later life, in the United Kingdom and internationally, and to achieve our vision of a world in which people can love later life. So, I welcome this edition, bringing together as it does leading experts from both sides of the Atlantic and distilling their accumulated wisdom into a volume which I hope will inspire, inform, and lead to action in this critical area.
Wednesday, March 9, 2016
WebMD and the Shriver Report did a survey on people's knowledge, actions and attitudes about Alzheimer's Disease which revealed "[p]eople recognize the seriousness of Alzheimer’s disease, but they aren’t taking steps to learn about their personal chances of getting the disease or to prepare for it financially...." Survey Reveals Beliefs, Behaviors on Alzheimer’s was published on February 25, 2016 and reveals some startling information, such as a large percentage of those surveyed indicated they aren't prepared, financially or otherwise, to deal with the disease. The survey results note that there is "a disconnect in how much respondents really want to know about their risk of getting the disease — it’s the sixth leading cause of death in the U.S. and has no cure. Two-thirds of people say they’d want to know their risk for developing Alzheimer’s later in life. But when presented with a list of ways to do that, a much smaller percentage say they have taken or would take steps to do it." The survey also inquired about caregiving, attitudes about a likely cure for Alzheimer's and whether the respondents knew someone with Alzheimer's; 78% responded they knew someone with the disease. An infographic with key findings is available here. An earlier issue of the Shriver Report on the topic is available here.
WebMD's special report on Alzheimer's is available here.
Tuesday, March 8, 2016
The promotional material catches your eye: "Every 67 seconds someone in the U.S. develops Alzheimer's Disease. 5.3 million Americans have the disease."
I'm seeing more programming being offered to practicing lawyers on dementia-related issues generally and specifically about Alzheimer's Disease. An example is an upcoming program (June 2016) from the Pennsylvania Bar Institute, describing a program on Alzheimer's Disease: "From diagnosis to legal documents, everything you need to counsel your client." The speakers for the day include three medical professionals, Paul J. Eslinger, PhD from Penn State Hershey Medical Center, Barry V. Rovner, M.D. from Thomas Jefferson University in Philadelphia, and Oscar L. Lopez, M.D., from University of Pittsburgh.
For more about the program, see PBI's website here.
Monday, March 7, 2016
In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.
Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.
To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:
- Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause." Changes to the law became effective on July 1, 2015.
- Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications. For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
- California, Assembly Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail." The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care. For more on the California legislation, signed by California Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.
These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect. It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.
March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Sunday, March 6, 2016
People Magazine ran a story last week about six Kentucky Middle-Schoolers (you read that right) who have created an app to help those with dementia and Alzheimer's to remember to take their medications. "The Meyzeek Middle School seventh-graders recently became one of eight teams to win the prestigious Verizon Innovative App Challenge, earning $20,000 for their school's STEM learning and a chance to bring their app to life with the help of Massachusetts Institute of Technology coding experts."
Kentucky Middle School Girls Develop App to Assist Alzheimer's and Dementia Patients: 'This Is a Tribute to My Grandfather' explains the project is the brainchild of Ellie Tilford who experienced first-hand the struggle for many of those with dementia to remember to take meds. "The girls' concept, Pharm Alarm, sends alert messages to patients when it's time to take their meds – if they forget, family members and doctors are immediately notified." Not only does the app have the alarm that alerts the phone-tree of contacts, it also includes "a pill log, which allows caregivers to scan in medicinal information through a pill container's labeled barcode, and a compliance graph for doctors to measure what percentage patients are taking their pills and attending doctor appointments." The article notes that the app should be available for download in June of this year.
Thanks to Stetson Law alum Erica Munz for sending me the link to the story.
Tuesday, February 23, 2016
Here are three recent articles of note on Physician-Aided Dying (PAD) that might be useful in your classes.
First, the Journal of the American Medical Association (JAMA) Psychiatry ran at article on February 10, 2016, Physician-Assisted Death for Patients With Mental Disorders—Reasons for Concern. As the article opens:
Physician assistance to help people end their lives—by prescribing or directly administering medication—is now legal in some form in 4 American states, Canada, and 4 European countries. In the United States, laws permitting physicians to write prescriptions for medications intended to end patients’ lives are limited to patients with terminal conditions and preclude physician administration of the medication. However, other countries, including the Netherlands, allow direct physician involvement and have expanded the criteria to include patients with irremediable suffering, whatever the cause. Therefore, the door has been opened for people whose suffering is primarily due to mental disorders to seek assistance in dying. (citations omitted)
Next in the same volume is the article about the study referenced in the first article: Euthanasia and Assisted Suicide of Patients With Psychiatric Disorders in the Netherlands 2011 to 2014. The full article is free, and the tables and references are also available in the online version. The authors conclude
Despite some limitations, an important strength of our study is that we examined reports of actual psychiatric EAS cases across an entire jurisdiction, rather than asking physicians to recollect their experiences or opinions. The results show that the patients receiving EAS are mostly women and of diverse ages, with various chronic psychiatric conditions, accompanied by personality disorders, significant physical problems, and social isolation or loneliness. Refusals of treatment were common, requiring challenging physician judgments of futility. Perhaps reflecting the complexity of such situations, the physicians performing EAS generally sought multiple consultations (but not always), and disagreement among physicians—especially regarding competence and futility—was not unusual. Despite these complexities, a significant number of physicians performing EAS were new to the patients. We conclude that the practice of EAS for psychiatric disorders involves complicated, suffering patients whose requests for EAS often require considerable physician judgment. The retrospective oversight system in the Netherlands generally defers to the judgments of the physicians who perform and report EAS. Whether the system provides sufficient regulatory oversight remains an open question that will require further study.
The New York Times ran an article about the study on February 10, 2016. Assisted Suicide Study Questions Its Use for Mentally Ill notes that
A new study of doctor-assisted death for people with mental disorders raises questions about the practice, finding that in more than half of approved cases, people declined treatment that could have helped, and that many cited loneliness as an important reason for wanting to die. The study, of cases in the Netherlands, should raise concerns for other countries debating where to draw the line when it comes to people’s right to die,
Discussing the findings from the study, the NY Times article notes that that it
finds that cases of doctor-assisted death for psychiatric reasons were not at all clear-cut, even in the Netherlands, the country with the longest tradition of carefully evaluating such end-of-life choices. People who got assistance to die often sought help from doctors they had not seen before, and many used what the study called a “mobile end-of-life clinic” — a nurse and a doctor, funded by a local euthanasia advocacy organization.
Good sources for your classes and for students writing papers on the topic!
Only Limited Authority as Health Care Agents? The Latest Grounds to Challenge Dreaded Arbitration Clauses in NH Cases
The New York Times offers another window into concerns about pre-dispute binding arbitration provisions that are routinely found in nursing home agreements. This is a long-simmering war, with many battlefronts and tactical arguments, as documented in the article. However, the article also focuses on a narrow group of cases where courts have rejected a binding effect for arbitration clauses signed by someone serving "merely" as a health care agent for the incapacitated resident. (I hope my Contracts course students this semester are reading this article!)
The article offers an additional opportunity to consider the tensions between public policies on either side of the debate over "fairness" of arbitration as a forum for consumer claims:
Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans.. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.
State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.
Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.
Mr. Barrow’s case [set for trial in Massachusetts] is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back. As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf.
Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration.
Our thanks to attorneys Karen Miller in Florida and Morris Klein in Maryland, plus Dickinson Law students Joe Carroll, Corey Kysor and Kadeem Morris in Pennsylvania for sending us the link to the NYT coverage.
February 23, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)
Monday, February 22, 2016
The latest issue of the New England Journal of Medicine (NEJM) has two articles about a recent study on dementia. The first Is Dementia in Decline? Historical Trends and Future Trajectories and the second is Incidence of Dementia over Three Decades in the Framingham Heart Study.
A subscription is required to access the full article about the Incidence article, but a free preview is available. Here is an excerpt from the preview
The prevalence of dementia is expected to soar as the average life expectancy increases, but recent estimates suggest that the age-specific incidence of dementia is declining in high-income countries. Temporal trends are best derived through continuous monitoring of a population over a long period with the use of consistent diagnostic criteria. We describe temporal trends in the incidence of dementia over three decades among participants in the Framingham Heart Study.
The Dementia in Decline perspective article is available for free. A pdf of the article is available here. Here is the opening paragraph from that article
In 2005, researchers from the Duke Center for Demographic Studies reported a “surprising trend”: data from the National Long-Term Care Surveys showed that the prevalence of severe cognitive impairment in the Medicare population had decreased significantly between 1982 and 1999. At a time when baby-boomer demographics led to predictions of a looming dementia crisis, this finding offered hope. Since that time, other reports have similarly shown that the incidence or prevalence of dementia is decreasing in various populations. Researchers have offered many possible explanations, including increased wealth, better education, control of vascular risk factors, and use of statins, antihypertensive agents, and nonsteroidal antiinflammatory drugs. However, even as researchers describe their “cautious optimism” about specific populations, they still project a quadrupling of global prevalence over the coming decades. (citations omitted)
Friday, February 19, 2016
The 2016 Aging & Society: Sixth Interdisciplinary Conference has released a call for papers for the October 6-7, 2016 conference to be held in Sweden. The call for papers includes papers, poster presentations, workshops/interactive sessions, or colloquia on one of the four conference themes. The themes are economic and demographic perspectives, social and cultural perspectives, medical perspectives and public policy perspectives. More information is available here.
Tuesday, February 16, 2016
Many of you recognize the name Diane Rehm, from NPR, where she has had her show, The Diane Rehm Show, for many years. "Retiring" at the end of 2016 doesn't mean she will be out of the public eye, according to a recent article in the Washington Post. Diane Rehm’s next act: Using her famed voice to fight for the good death is a profile of Mrs. Rehm that also summarizes her writings. Her 2014 memoir relates how her husband ended his life on his own by refusing food and fluids, since physician-aided dying is not legal in their state.
Mrs. Rehm is quoted "[I]t’s time for me to retire, especially on the issue of right-to-die, to be able to speak out and to speak freely....” In addition to supporting the right to die, she plans to champion research on Alzheimer's and Parkinson's.
February 16, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Retirement | Permalink | Comments (0)
Monday, February 15, 2016
Time Magazine's February 29 issue has a provocative image and title, showing a silhouette of a young woman about to ingest a spotlighted, shining capsule. The issue, titled "The Alzheimer Pill: A Radical New Drug," focuses on a pill called LM 11 A-31.
By my count, this is at least the fourth cover by Time focused on the latest hopes for a solution to this disease. Prior issues include:
- October 25, 2010: Alzheimer's: At Last Some Progress Against the Most Stubborn Disease
- May 14, 2001: Believe it or Not, this 91 Year-Old Nun Could Help Your Beat Alzheimer's, promoting a "landmark study of the disease."
- July 17, 2000: The New Science of Alzheimer's Disease