Wednesday, December 13, 2017
Are games and food supplements that promise to stave off the onset of dementia the modern day version of "snake oil?" I promised to write more about the Aging Brain Conference at Arizona State University's Sandra Day O'Connor College of Law on December 8, 2017. Speaker Dr. Cynthia Stonnington, Mayo Clinic, offered an important look at ways in which law, ethics, medicine, and commerce can collide with her survey of a host of approaches receiving "popular" press treatment.
She examined self-described "brain-training" programs, miracle diets, supplements and targeted exercise programs, noting that most studies that purport to demonstrate positive results from these items have serious flaws. Thus, at best, programs that claim to provide "protection" against dementia are usually promising more than has been proven. Dr. Stonnington, along with the morning keynote speaker, former U.S. Surgeon General Richard Carmona, reminded us that
- maintaining social engagement,
- engaging in lifelong learning,
- getting regular exercise of any type,
- having good blood pressure control,
- getting adequate sleep, and
- focusing on good nutrition (including eating plans such as the Mediterranean, DASH or MIND diets)
are far more important than any single, magic game or exercise.
One of the most lively discussions of the day came near the end, in response to presentations by Dr. Patrica Mayer of Banner Health in Phoenix, Amy McLean of Hospice of the Valley. and Life Sciences Professor Jason Robert (ASU) speaking for himself and Susan Fitzpatrick (James S. McDonnell Foundation), about end-of-life considerations for persons with dementia or other serious illnesses. What would be the most likely response of a physician or emergency personnel confronted with a "do not resuscitate" tattoo on the chest of an emergency patient? Dr. Mayer stressed that she is seeking reliable methods of communicating end-of-life wishes, and for her that means a preference for a written, Medical Power of Attorney. She wants that "live" interaction whenever possible, in order to fully explore the options for care for individuals unable to communicate for themselves. But she also noted a frequent frustration when she contacts designated POAs about the need to make tough decisions, only to learn they were completely unaware before that moment of having been named as the designated agent.
I was part of a panel of court-connected speakers, including Arizona Superior Court Judge Jay Polk (Maricopa County), neuropsychologist (and frequent expert witness) Elizabeth Leonard, and experienced Phoenix attorney Charles Arnold. I was interested to hear about -- and will pursue more information on -- the psychologists' use of evaluative tools for clients that use scenarios that would appear to test not just for loss of memory, but impaired judgment. I was speaking on the unfortunate need for judicial inquiries into "improvident transactions" by persons with problematic cognition and I used litigation approaches from other locations -- Ireland (common law) and Maine (statutory) -- as examples. The Arizona legal experts reminded me to take a closer look at Arizona's financial exploitation laws.
For more from this conference, see Learning to Say the Word "Die" -- about a pilot program developed by Dr. Mayer while she was an advanced bioethics fellow at the Cleveland Clinic. I also recommend Dr. Mayer's article on CPR & Hospice: Incompatible Goals, Irreconcilable Differences,
December 13, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Games, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, Science, Statistics | Permalink | Comments (0)
Tuesday, December 12, 2017
The "Aging Brain" Conference hosted by Arizona State University's Sandra Day O'Connor College of Law held on December 8, 2017 at the Sandra Day O'Connor United States Courthouse in Phoenix (that's a double helping of Sandra!) proved to be a fascinating, deep dive into the intersection of medicine, ethics and law with a focus on neurocognitive diseases, including Alzheimer's Disease. The panelists and audience included academics in a wide range of fields, plus practitioners in medicine, law, social services, and more, along with both state and federal judges. United States District Judge Roslyn Silver is a long-time supporter of law and science programming with ASU.
One of the important themes that emerged for me was the growing significance of pre-symptomatic tests that can disclose genetic markers associated with greater incidence of an eventual, active form of a degenerative brain disease. Neurologist Richard Caselli from Mayo Clinic and Jessica Langbaum, principal scientist with Banner Alzheimer's Institute laid out the latest information on a variety of genetic testing options, including the possibly mixed results for "risk" connected to positive results for specific genetic markers. A provocative question by a morning speaker, Law and Biosciences Professor Henry T. Greely at Stanford, captured the personal dilemma well, when he asked the audience to vote on how many would want to to know the results of a genetic test that could disclose such a connection, especially as there is, as yet, no known cure or even any clear way to prevent most neurocognitive diseases from taking hold.
Taking that a step further, how many of us would want our employer to know about that genetic marker results? How about our health insurers? As we discussed at the conference, some consumer information is already available through "popular" ancestry testing sites such as "23 and Me," which expressly offers testing for "genetic health risks," including "late-onset Alzheimer's Disease and Parkinson's Disease." Arizona State Law Professor Betsy Gray, director of the Law & Neuroscience Program for ASU's Center for Law, Science and Innovation, who master-minded the conference, helped to identify a host of legal and ethical issues connected to this developing world of science and medicine. Jalayne J. Arias, a full-time researcher at University of California San Francisco's Neurology, Memory and Aging Center (and clearly a rising academic star and graduate of ASU Law) outlined the implications of pre-symptomatic testing from the perspective of long-term care insurance. For more from Professor Arias, I recommend her 2015 paper for the Journal of Clinical Ethics on Stakeholders' Perspectives on Preclinical Testing for Alzheimer's Disease.
I plan to write more about this conference, as many perspectives on legal, ethical and medical questions were offered.
Wednesday, December 6, 2017
On December 8, 2017, I'm excited to be participating in a conference on The Aging Brain: Legal, Policy & Ethical Perspectives, in Phoenix, Arizona. This program is a follow-up to an interdisciplinary workshop hosted at Arizona State University's Sandra Day O'Connor School of Law in the fall of 2016. This year's presentations will take place at the the United States Courthouse in Phoenix.
The planned schedule is jam-packed with speakers I'm looking forward to hearing, including:
Welcome: Betsy Grey, Sandra Day O’Connor College of Law, ASU
Introduction: Dean Douglas Sylvester, Sandra Day O’Connor College of Law, ASU
Keynote Speaker:Richard H. Carmona, M.D., M.P.H., FACS, 17th Surgeon General of the United States, Chief of Health Innovations, Canyon Ranch, Distinguished Professor, University of Arizona
Scientific Developments in Aging and Dementia: Pre-Symptomatic Screening for Neurodegenerative Diseases
Panel Chair: Hon. Roslyn O. Silver, U.S. District Court for the District of Arizona
- Dr. Richard Caselli, Mayo Clinic
- Dr. Jessica Langbaum, Banner Alzheimer's Institute
- Dr. Cynthia M. Stonnington, Mayo C;inic
- Jalayne J. Arias, UCSF Neurology, Memory and Aging Center
- Henry T. Greely, Stanford Law School
Aging at Home
Panel Chair: Larry J. Cohen, The Cohen Law Firm
- David Coon, College of Nursing & Health Solutions, ASU
- Kent Dicks, Life365, Inc.
Panel Chair: Charles L. Arnold, Frazer Ryan Goldberg & Arnold, LLP
- Hon. Jay M. Polk, Probate Dep’t. Associate Presiding Judge, Superior Court of Arizona for Maricopa County
- Katherine Pearson, Dickinson School of Law, Pennsylvania State University
- Dr. Elizabeth Leonard, Neurocognitive Associates
- Betsy Grey, Sandra Day O’Connor College of Law, ASU
End of Life
Panel Chair: Dr. Mitzi Krockover, Health Futures Council at ASU
- Jason Robert, Lincoln Center for Applied Ethics, ASU
- Amy McLean, Hospice of the Valley
- Dr. Patricia A. Mayer, Banner Baywood & Banner Health Hospitals
Dr. Susan Fitzpatrick, President, James S. McDonnell Foundation
Introduction by Jason Robert, Lincoln Center for Applied Ethics, ASU
December 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0)
Thursday, November 30, 2017
Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.
I've also been hearing about more attempts to evict residents from Continuing Care Communities, also known as CCRCs or Life Plan Communities. For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC. The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years. When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue. Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.
Is there a trend? Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision? If the answer is "yes," then there is a tension here, between client expectations and marketing by providers. Such tension is unlikely to be good news for either side.
CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.
The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain. Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.
In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased. A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering." All of that indicates dementia care is part of the "continuing" plan.
CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care. Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing. Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.
November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Sunday, November 26, 2017
The Canadian Centre for Elder Law (CCEL) released a new report, Report On Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence And Diminished Mental Capacity, which can be downloaded as a pdf here. The report was a joint project between CCEL and FAIR (Canadian Foundation for Advancement of Investor Rights). Here is the executive summary of the report
Canadian investment firms and their financial services representatives1 (hereinafter referred to as "financial services representatives" or simply "representatives") serve millions of vulnerable investors, many of whom are older Canadians. Vulnerable investors may be persons living in isolated, abusive or neglectful situations which can make them more likely to be subject to undue influence. They also may be persons with diminished mental capacity due to health issues, developmental disability, brain injury or other cognitive impairment. Such social vulnerabilities may be episodic, or long-term.2
Who is a Vulnerable Investor?
Older investors, persons with fluctuating or diminished mental capacity, and adults who are subject to undue influence or financial exploitation are collectively referred to in this report as vulnerable investors. This concept of vulnerability is often a contentious one. This report uses the term "vulnerable" to refer to social vulnerability, and does not ascribe vulnerability to older persons as an inherent personal characteristic.3 Rather, the term reflects an understanding that differing social conditions may make a person more or less vulnerable. Individual older investors may personally not be socially vulnerable. But as a group, older individuals may be subject to external conditions—such as ageism—that negatively affect them. This report specifically notes that ageism can make older people broadly vulnerable as a class, even while individual older adults may not be, or identify, as particularly vulnerable themselves.
This report adopts the core aspects of the Quebec definition of vulnerable investor. A vulnerable investor is a person who is in a vulnerable situation, who is of the age of majority, and lacks an ability to request or obtain assistance, either temporarily or permanently, due to one or more factors such as a physical, cognitive or psychological limitation, illness, injury or handicap.
It is important, and a goal of this report, to highlight the increased social vulnerability risks associated with aging and to raise awareness that aging life-course benchmarks may trigger a representative to start ensuring that increased appropriate protections or standards are in place. In this way, the issue of older investors will be drawn to the fore, without supporting the myth that all old people are vulnerable and in need of protection.
Actions by Attorneys and Their Investigators Trigger Sanctions Affecting the Underlying False Claims Act Suit
A decision earlier this year in a qui tam suit, alleging the submission of false claims to Medicare for the off-label prescription of a drug for dementia, seems especially interesting in light of recent high profile allegations involving Harvey Weinstein's alleged use of private investigators to befriend his victims in order gather information.
In the qui tam suit the drug in question was Namenda, described in the opinion as "approved by the FDA for treatment of moderate to severe Alzheimer's disease," but allegedly also promoted illegally by the companies for prescription to individuals with milder stages of dementia. In Leysock v. Forest Laboratories, et al, the United States District Court in Massachusetts dismissed the complaint as a sanction for conduct by the plaintiff's attorneys and the investigator hired by those attorneys:
The present dispute arises out of the conduct of counsel for relator, the Milberg law firm, in investigating the case. As set forth below, Milberg attorneys engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices, and in some instances about their patients. In essence, Milberg retained a physician and medical researcher, Dr. Mark Godec, to conduct a survey of physicians concerning their prescription of Namenda to Medicare patients. In order to obtain the cooperation of the physicians, Dr. Godec falsely represented that he was conducting a medical research study. Dr. Godec, at Milberg's direction, conducted two internet-based surveys as well as follow-up telephone interviews. Among other things, the physicians were induced to provide patient medical charts and other confidential medical information to Dr. Godec. Information derived from those surveys was then set out in the Second Amended Complaint in this action, and was relied on by the Court in denying defendant's motion to dismiss in 2014.
Defendants have now moved to dismiss the Second Amended Complaint as a sanction for alleged violations of attorney ethical rules. For the reasons stated below, that motion will be granted.
November 26, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)
Wednesday, November 22, 2017
One of the many things that I am thankful for is the assistance of kind and patient individuals who have helped my mother and father for more than five years, as age-related issues make my parents' lives more challenging. On the top of my list is my sister -- who is a constant, loving presence -- and who makes it all possible. She tolerates my jet-fueled attempts to help on my drop-in visits to Arizona from Pennsylvania.
Our father was at home with progressing dementia for more than two years before it became necessary to find a dementia-care living center that could provide a safer setting. For most of that time, we had 24/7 assistance in the home -- and we still have help now for our mother at home.
But, it just become too hard for Dad at home, especially as the multilevel, 90-year old house was full of traps for his unsteady steps. Mom participated in the search for a better setting. When the time came, she made the ultimate decision about where and when. While the transition was anything but easy, with every passing day we knew more clearly it was the right decision.
On good days, Dad would declare to anyone who was passing, "this is a very good place." He was usually sitting on his favorite bench in the center courtyard, holding "court" with everyone who walked by on the five acre campus. (On a bad day, he might ask rather insistently for a cigarette, something he hadn't done in 50 years!).
My sister and I came to revel in the holiday parties organized by the caring staff. We knew the parties would be festive, with great food and often with music and dancing, and that extended families would join together. One holiday, another visiting son who looked about my age, asked my name and it turned out we had attended high school together, not far down the road. A modern way to hold a "high school reunion," right?
Dad's center was entirely devoted to residents with dementia, with or without additional physical disabilities. Once a resident was admitted, and as long as they did not need certain types of skilled medical care (such as IVs), the Center could be their home until the last days. I'm still in touch with members of the staff who helped my Dad, and I think of all of them with fondness and gratefulness.
Each year we celebrated a traditional Thanksgiving meal at Dad's center (usually a few days before the actual holiday) as a big group. On Dad's last Thanksgiving, in 2016, families gathered on the covered porches of each of the four cottages in the community. It was a typically warm -- but also an atypically rainy -- November day in Phoenix.
A key to the success at Dad's center is a setting that facilitates behavioral approaches to dementia care, rather than drugs or restraints. The 48 residents -- 12 per cottage -- have free run of the secure campus, and in Dad's case he used every inch. His walking grew stronger in the early days after his admission (even with his "bad" knee), while the agitation and anger he had while at home eased significantly. For the first time in more than a decade, his blood pressure stabilized and we soon realized even his hearing and vision improved.
Dad was at the center just a week shy of three years, passing at age 91. Of course, after the initial improvement in strength with his regular walking, his fragility over the years increased slowly, but he was still out and about until his last two weeks. Two of his former judicial law clerks visited Dad close to Thanksgiving last year. Such kindness from everyone.
I commented near the end of Dad's time at the center, while chatting with the Director, that perhaps some of the residents might enjoy having more "reasons" to walk. I suggested the possibility of a mail box, where residents could collect or deliver cards and letters, both real and "created" especially for the holiday.
This is a community that welcomes suggestions -- and doesn't ignore them -- and thus I was pleased but not really surprised to get an email this week from the Director. Dad passed away some 10 months ago, but the staff nonetheless took action -- installing an old-fashioned mailbox outside each cottage, with decorations to help residents identify their home spot. I hear deliveries are made regularly -- even on holidays! I like to think how much Dad would have enjoyed being part of the postal delivery.
My thanks to everyone who is part of a care-giving team. You mean so much to all of us. Happy Thanksgiving to all of you and your families!
Wednesday, November 15, 2017
Shortages of Specialists to Screen and Diagnose Early Stages of Neurocognitive Diseases Are Part of the Looming Problem
A recent study by the Rand Corporation points to related problems with diagnosis AND treatment of Alzheimer's Disease and other neurocognitive disorders. Even as there is a growing need for effective treatment, there are "too few medical specialists to diagnose patients who may have early signs of Alzheimer's" and thus become eligible for therapies that might slow or or halt progression of such diseases. From the Rand news release:
“While significant effort is being put into developing treatments to slow or block the progression of Alzheimer's dementia, little work has been done to get the medical system ready for such an advancement,” said Jodi Liu, lead author of the study and a policy researcher at RAND, a nonprofit research organization. “While there is no certainty an Alzheimer's therapy will be approved soon, our work suggests that health care leaders should begin thinking about how to respond to such a breakthrough.”
An estimated 5.5 million Americans live with Alzheimer's dementia today, with the number projected to increase to 11.6 million by 2040.
Advanced clinical trials are underway for at least 10 investigational therapies that have shown promise in slowing or blocking development of Alzheimer's disease. Researchers say the progress provides guarded optimism that a disease-modifying therapy could become available for routine use within a few years.
Liu and her team examined the pathway patients would likely take to receive an Alzheimer's therapy and created a model to simulate the pressures that such an approved therapy would put on the health care system.
The analysis assumes that a therapy is approved for use beginning in 2020 and screening would begin in 2019, although researchers stress that the date was chosen only as a scenario for the model, not as a prediction of when a therapy may be approved.
Under such a scenario, about 71 million Americans aged 55 and older would have to be screened for signs of mild cognitive impairment. After follow-up examinations and imaging to confirm evidence of Alzheimer's, the RAND analysis estimates 2.4 million people ultimately could be recommended for treatment.
For additional analysis, see The Washington Post's article from its Business Section, We're So Unprepared for Finding An Alzheimer's Treatment.
Special thanks to George Washington Law Professor (and friend) Naomi Cahn for making sure we did not miss this item.
Friday, November 10, 2017
Recently there was some coverage about a woman who was being spoon-fed by employees of the facility despite the existence of her advance directive. Kaiser Health News covers the issue in New ‘Instructions’ Could Let Dementia Patients Refuse Spoon-Feeding explains that a group in Washington State has issued “Instructions for Oral Feeding and Drinking”.
As well there's a second document that explains the pros and cons of doing so. There are limits, according to the KHN article.
The guidelines do not apply to people with dementia who still get hungry and thirsty and want to eat and drink, the authors note. ... “If I accept food and drink (comfort feeding) when they’re offered to me, I want them,” the document states. ... But if the person appears indifferent to eating, or shows other signs of not wanting food — turning away, not willingly opening their mouth, spitting food out, coughing or choking — the document says attempts to feed should be stopped. ... And the guidelines tell caregivers to respect those actions.
As well, the KHN article notes, these are guidelines and are not required to be followed.
Friday, November 3, 2017
One of my favorite parts of the LeadingAge Annual Meeting is my first tour of their Expo. Law conferences are so dull by comparison! There are hundreds of vendors at the LeadingAge expos. You can find a smorgasbord of senior housing options, architects eager to help you with your purpose-designed projects, all kinds of communications systems, management software and health-related devices, even cooking classes. I often find information that helps my research, including data complications by actuaries, accountants and marketing firms about trends in housing and care systems. This year I heard about an "app" in development with a university team that included law students, to offer caregivers options to identify potential concerns, such as financial abuse.
In the years I can attend, I keep my eyes open for my own personal "That's Creative" award. This year, it was the Sky Factory -- where, using solar energy, the company offers a wide variety of windows, skylights, and other wall installations -- but with a twist. These portals offer "award winning illusions of nature." Overhead views show clouds and trees, rustling in the wind. Another window might offer a view of an especially pleasant beach, with waves in motion. That is why the designs need energy, appropriately solar energy, to keep the images in motion.
Perhaps most unique, some of the images are designed so as to offer subtle changes triggered to the time of day (or night). Sunlight plays across the images of nature, and shadows move with the sun. The goal is for individuals who are house-, chair- or bed-bound to engage with nature, with the hope the engagement will stimulate mental response and circadian rhythms in the body. The use of this product is not limited to seniors, or even disabled persons.
Tuesday, October 31, 2017
On Monday I did a presentation in New Orleans for a conference sponsored by a professional liability insurance organization. My topic was "legal implications of a diagnosis of dementia" as a risk management concern and part of my task was to talk about alternative diagnoses of neurocognitive disorders, especially for clients.
In part, my message was a note of caution. Lack of "short term memory" may not be present, and thus attorneys, families and colleagues may not have this early warning sign of cognitive disease. For example, a frontal lobe disorder can be "early" onset (usually meaning onset before the individual reaches the age of 60). Language or short term memory problems may not be noticeably impaired, while higher executive functions, especially judgment, can be seriously impacted. Changes in personality, loss of inhibition (including sexual inhibition), recklessness with money or investments may be signs, but these changes may be mistaken for "a mid-career crisis," or other personality problems unrelated to disease.
The lawyer who invited me to do this program with him, Mark Tuft from California, has long experience and knowledge of ethical and disciplinary standards for attorneys. On a related point, he pointed me to a recent Washington Post article, where an individual had been living for two decades with a "fatal" diagnosis of early onset "Alzheimer's Disease," which, as it turns out, may not have been accurate. The author writes in his essay:
Two neurologists have stated [recently] that I fall into a fairly new category called suspected non-Alzheimer’s pathophysiology, or SNAP. According to one study, about 23 percent of clinically normal people ages 65 and older and about 25 percent of people with MCI[Mild Cognitive Impairment] have SNAP. For people with both MCI and SNAP, the risk of cognitive decline and dementia is higher than for clinically normal people with SNAP.
I was initially diagnosed with MCI. But for the past 10 years, the diagnosis has been Alzheimer’s. It is still officially the diagnosis because information gained in trials — which is how I found out that my amyloid scan was negative and that I probably did not have Alzheimer’s — does not go on a medical record. . . .
I will have to wait for science to catch up before I know for sure. Who knows, I may even be part of the next new term. I just hope it means that what I have will not be progressive and lead to death. The one thing we all should learn from my experience is to take advantage of all the tools we have access to so we can make the best decision possible.
What is next for this individual? He received the latest news with mixture of relief and confusion. Read "I lived with an Alzheimer’s diagnosis for years. But a recent test says I may not have it after all," by .
Thanks, Mark, for sharing your podium in New Orleans with me on Monday and for pointing all of us to this article, which is another reminder of the rapidly changing world of scientific knowledge about cognitive impairments.
Thursday, October 26, 2017
The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.
As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.
The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including:
- Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
- Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
- Establish stringent reporting and financial accountability measures for conservators, including the following:
1. require conservators, upon appointment, to sign releases permitting the courts
to obtain financial documents of protected persons;
2. require annual reports to include bank and financial statements and any other
documentation requested by the court auditor, with appropriate protections
to prevent disclosure of confidential information;
3. require conservators to maintain a separate trust account for each protected
person to avoid commingling of funds; and
4. require conservators to maintain financial records for seven years.
The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."
Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.
The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study. The deadline for the comments is November 8, 2017.
My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R. Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!
October 26, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 23, 2017
My thanks to my colleague Dermot Groome for pointing me to the CNN investigative series on "The Little Red Pill Being Pushed on the Elderly." The prescription drug in questions is Nuedexta, approved to treat PseudoBulbar Affect or PBA, a "disorder marked by sudden and uncontrollable laughing or crying." (Perhaps you have seen commercials for treatment of PBA with actor Danny Glover effectively portraying the disorder).
According to the CNN report:
Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. Total sales of Nuedexta reached almost $300 million that year.
Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less. And state regulators have found doctors inappropriately diagnosing nursing home residents with PBA to justify using Nuedexta to treat patients whose confusion, agitation and unruly behavior make them difficult to manage."There has to be a diagnosis for every drug prescribed, and that diagnosis has to be real ... it cannot be simply made up by a doctor," said Kathryn Locatell, a geriatric physician who helps the California Department of Justice investigate cases of elder abuse in nursing homes. "There is little to no medical literature to support the drug's use in nursing home residents (with dementia) -- the population apparently being targeted."
Friday, October 20, 2017
The title is Traveling The Valley of Shadow of Death in 2017. Drawing upon both her work and personal experiences, Dr. Lynn points out:
- "First, the life possibilities of an elderly person with increasing disabilities is profoundly depending upon the surrounding community...."
- "Second, the preferences and priorities of elders in this phase of life vary much more than in earlier phases...."
- "Third, we need more reliable and reasonable financing plans. Working-age people still don’t realize that they need to provide for themselves in old age. Policies need to change to make vehicles for saving affordable and reliable...."
- "Fourth, sick and disabled elders living in the community need continuity and reliability across time, instead of the cut-up care system we provide...."
She seems to advocate a unique form of deregulation, concluding:
We need an era of innovation and testing, shaped by the facts of the situation. We need a new set of policies for our new way of living at the end of our lives. Let’s try substantial innovations, mostly by relieving communities of the burdens of past policies and regulations, and let’s learn quickly so we can count on living comfortably and meaningfully in the last years of our lives.
I recommend the whole essay.
Thursday, October 19, 2017
Every day I fight with my email in-box, trying to delete the stuff that just isn't necessary to open, much less read. For example, I know more or less which emails -- no matter how tempting the regarding line -- are what I call "junk science" emails that claw their way past my spam filter. A lot of them involve "anti-aging" theories that promote foods, exercises, vitamins or minerals that "May" prevent cognitive or physical decline. "May" with a capital "M."
But United States District Judge Roslyn Silver, from Arizona, recently shared an article she's using with a class she is teaching at Arizona State's law school. In the June 2017 issue of Smithsonian Magazine, the subtitle for the article explains: "Backed by digital fortunes of Silicon Valley, biotech companies are brazenly setting out to 'cure' aging." The author profiles the work of controversial author Aubrey de Grey and "Chief Science Officer" from SENS, a biotech research enterprise in California. The author summarizes:
The basic vision behind SENS is that aging isn’t an inevitable process by which your body just happens to wear out over time. Rather, it’s the result of specific biological mechanisms that damage molecules or cells. Some elements of this idea date back to 1972, when the biogerontologist Denham Harman noted that free radicals (atoms or molecules with a single unpaired electron) cause chemical reactions, and that these reactions can damage the mitochondria, the powerhouses within cells. Since then, studies have linked free radicals to all sorts of age-related ailments, from heart disease to Alzheimer’s.
De Grey takes this concept further than most scientists are willing to go. His 1999 book argued that there could be a way to obviate mitochondrial damage, slowing the process of aging itself. Now SENS is working to prove this. Its scientists are also studying other potential aging culprits, such as the cross-links that form between proteins and cause problems like arteriosclerosis. They’re looking at damage to chromosomal DNA, and at “junk” materials that accumulate inside and outside cells (such as the plaques found in the brains of Alzheimer’s patients).
Despite the controversies associated with the work of de Grey and other anti-aging proponents, the article points to a "mini-boom of private investment in Silicon Valley, where a handful of labs have sprung up in SENS' shadow, funded most notably by tech magnates."
One of the early critics of de Gray concedes that anti-aging theorists have attracted needed money and energy into age-related research beyond "just" the 1,000-year-old human goal:
More than a decade later, [University of Massachusetts Medical School Professor] Tissenbaum now sees SENS in a more positive light. “Kudos to Aubrey,” she says diplomatically. “The more people talking about aging research, the better. I give him a lot of credit for bringing attention and money to the field. When we wrote that paper, it was just him and his ideas, no research, nothing. But now they are doing a lot of basic, fundamental research, like any other lab.”
I can definitely see how this article would be useful in a law school class on aging, elder law, or estate planning. It raises fundamental questions in governance, economics and human rights, including implications from disparities in life expectancy that already exist and are increasing, associated with comparative wealth.
For the full article, see Can Human Mortality Really be Hacked? by Elmo Keep.
Wednesday, October 18, 2017
You may have read recently about a woman who had an advance directive that addressed artificial nutrition and hydration. The SNF where she lived was hand feeding her, over her husband's objections. The trial court sided with the SNF and the state ombudsman who had argued that "state rules to prevent abuse required the center to offer residents three meals each day and provide help eating, if needed." Can one provide in her advance directive that she refuses in advance oral fluids and foods at some point in the future? The Kaiser Health News article, Dementia Patient At Center of Spoon-Feeding Controversy Dies, explores the specific case as well as the issue. The patient, as the title explained, died last week.
Here's the issue illustrated in this matter.
At issue is whether patients with Alzheimer’s and other progressive diseases can stipulate in advance that they want oral food and liquid stopped at a certain point, hastening death through dehydration. It’s a controversial form of what’s known as VSED — voluntarily stopping eating and drinking — a small but growing practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, usually resulting in death within two weeks. .... “The right to VSED is reasonably well-established, but it’s when a person isn’t competent that’s the issue,” said Paul T. Menzel, a retired bioethicist at Pacific Lutheran University in Tacoma, Wash., who has written extensively on the topic.
So in thinking about a person saying no to food and fluids, "VSED doesn’t require a law or a doctor’s approval. But the question of whether it’s possible for people who can no longer actively consent to the procedure remains ethically and legally unclear. That’s especially true for patients who open their mouths to accept food and fluids...."
Have you looked at your state's laws to see if there is a position on this? According to the article, almost 24 states have laws on "assisted feeding" some of which "specifically prohibit withdrawing oral food and fluids. Other states address only artificial feeding or are unclear or silent on the issue [and] ... Idaho — appears to sanction withdrawal of assisted feeding by a health care proxy" according to an expert quoted in the article. However, "Idaho state law also prohibits any form of assisted suicide and requires “comfort care” for patients if artificial nutrition and hydration is withdrawn. It’s not clear whether a request to halt assisted feeding would be honored" said an expert on Idaho's statute on Medical Consent and Natural Death Act.
October 18, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Wednesday, October 4, 2017
New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships
The New Yorker Magazine offers "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.
In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”
There are fundamental issues at the heart of this kind of history. Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself. But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.
My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly.
October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 2, 2017
The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds. It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."
Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners. A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law. The mother-in-law later challenged the transaction as contrary to her understanding and intention.
Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts. They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.
As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.
Not so fast. Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process.
October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, October 1, 2017
Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017. Not a violent contact and apparently not one involving physical or mental injury. But clothing was removed and fluids were later documented. Now residents are being transferred and more than 70 employees will reportedly be laid off.
As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities. A criminal investigation found no grounds for prosecution. A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports. The actual closure action was made voluntarily by Genesis.
Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:
- Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"?
- How far must a LTC provider go to prevent intimate contact between residents?
- After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
- How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?
- Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?
October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 18, 2017
I've heard a few times about concerns regarding doctors in their 70s and 80s who continue to practice medicine. The implication is that their age might somehow make them less fit to practice medicine. I've also heard the same concerns expressed about attorneys. Do we concern ourselves with professional fitness just based on age for any other profession? Not for us law profs. So I was interested in reading this article from the Philadelphia Inquirer, More doctors are practicing past age 70. Is that safe for patients?
The article opens with the story of one pediatrician who at 76, was required by his hospital to be evaluated. This hospital "is among the growing number of hospitals that are reevaluating doctors simply because they are old. Their age puts them at higher risk for physical and cognitive changes that could imperil patients." Other doctors quoted in the article oppose such actions, arguing the lack of "scientific evidence correlating such test results with physician performance. They have, however, grudgingly accepted physical testing and peer review." The article notes a trend of sorts on this issue
In 2015, the American Medical Association called for guidelines to evaluate aging doctors, although it did not specify what they should be. It also said doctors have a “professional duty” to self-assess. The American College of Surgeons last year said surgeons should voluntarily undergo testing by their personal physicians and disclose any problems to their employers.
There are likely more older physicians still practicing then you might think. To some extent, the article notes, that taking action now internally is preemptive. There's a two-day challenging testing program, "[t]he Aging Surgeon Program, which is available to doctors from anywhere, involves extensive cognitive and physical testing as well as evaluation of balance, reaction time, and fine motor skills." Penn Medicine has implemented cognitive testing for all of their doctors who are 70 or older. The article looks at what other medical facilities in the area are doing.
I suspect this is an issue we will hear more about in the future.