Friday, August 18, 2017
Every once in a while, I find something so well written, that even if not strictly speaking an "elder law" related piece, I have to share it here.
Here's one such example. Of course, under the right combination of circumstances, given the secrets people hold to their last hours, there certainly could be legal consequences of the mysteries discussed by Hospice Chaplain Kerry Egan in her piece for the New York Times, "Married to a Mystery Man."
I'm sure all of us have seen ads about fighting aging, or a product that is promoted as "anti-aging." I always am puzzled; it seems that we are in a battle against aging. So an article in Huffington Post caught my eye. Allure Just Banned The Term ‘Anti-Aging’ And Everyone Else Should, Too explains the company "will no longer use the term “anti-aging,” acknowledging that growing older is something that should be embraced and appreciated rather than resisted or talked about as if it’s a condition that drains away beauty." The article explains that the "anti" label reinforces a negative message about aging being something that is to be fought. The magazine's statement, "Allure Magazine Will No Longer Use the Term 'Anti-Aging'" is available here.
Thursday, August 17, 2017
The federal right to try law's next stop is the House of Representatives. The article in Kaiser Health News, House Expected To Hold Hearings On ‘Right-To-Try’ Bill That Senator Tied To FDA Funding provides this background
The Senate quickly passed the bill that would allow dying patients access to experimental drugs after Sen. Ron Johnson (R-Wis.) had threatened to slow down consideration of a separate bill to renew the FDA’s fee-collection authority. In other drug industry news, the FDA is implementing new rules about hiring foreign scientists, industry tightens controls to keep out counterfeit drugs, cancer trials are low on patients and costs of old drugs rising quickly for Medicaid.
Although given priority by the Senate, the bill isn't expected to get the same treatment by the House. According to an article in Roll Call, ‘Right to Try’ Bill Could Face Slower Action in House if the House committee changes the bill from the Senate version, things will slow down. Here's a bit of an overview from the article:
Currently, when a patient seeks access to an experimental drug, his or her physician must work with the drug company, the FDA and an institutional review board that signs off on drug testing to approve the treatment’s use. When originally introduced in January, Johnson’s bill would have taken the FDA and other government entities out of that process. It would have let the states define “terminal illness,” potentially leading to dozens of different standards across the country about who would qualify for access. It also would have prevented the FDA from using outcomes associated with the experimental use when considering the drug’s application.
The new bill, instead of leaving the definition of terminal illness to the states, says that eligible patients should have a “life-threatening disease or condition” as defined by current federal law. It also gives the FDA the right to use outcome data if the administration determines that it is critical to assessing the drug’s safety — or if the drug company wants the outcomes used.
The drug companies would also have to provide the FDA with information about the experimental uses. Like the original bill, the new version shields companies against liability, but extends that protection to manufacturers who chose not to grant access to treatments. The bill would also limit the drugs that can be provided to those that have already completed the first phase of formal clinical trials, which are conducted to assess drug safety.
Tuesday, August 15, 2017
Professor Marshall Kapp has recently had an article published in 33 Ga. State Law Review 869. Distinctive Factors Affecting the Legal Context of End-Of-Life Medical Care For Older Persons is the lead article in a symposium volume on end of life issues. Here is the abstract for this article
Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.
The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are involved. Of the approximately 2.5 million people who die each year in the U.S., about three-quarters of deaths occur among persons aged sixty-five and older. As stated succinctly by historian Jill Lepore, “[t]he longer we live, the longer we die.”
This article outlines a few of the most salient clinical and social factors that distinguish the large and growing cohort of older persons, in potentially legally and policy relevant ways, from other population groups for whom end-of-life medical treatment choices may come into play. Some practice and policy implications are alluded to briefly.
Thanks to Professor Kapp for letting me know about his article!
Monday, August 14, 2017
According to recent stories about Medicare observation status, poor elders may be harder hit by this than those with more affluence. Medicare’s Observation Care Policy More Likely To Affect Low-Income Seniors makes note of "[a] new study finds that low-income patients are more likely to be kept in the hospital under observation, and the higher out-of-pocket spending that accompanies not being officially admitted is a bigger burden for them." The study referenced is published in the American Journal of Medicine. The article's abstract explains:
Medicare beneficiaries hospitalized under observation status are subject to cost-sharing with no spending limit under Medicare Part B. Since low-income status is associated with increased hospital utilization, there is concern that such beneficiaries may be at increased risk for high utilization and out-of-pocket costs related to observation care. Our objective was to determine whether low-income Medicare beneficiaries are at risk for high utilization and high financial liability for observation care compared to higher-income beneficiaries.
A subscription is required to access the full article.
The ABA Journal this month has a short piece especially relevant today, August 14, 2017. Today is the 82nd anniversary of the signing of the Social Security Act in 1935. Frances Perkins is highlighted in the article as "The Woman Behind America's Social Safety Net."
By late 1934, Roosevelt was facing conservative resistance to his New Deal programs in Congress and the courts. Moreover, it would take years before those who had immediate needs would see any benefit from the social security [Secretary of Labor Frances] Perkins favored. Roosevelt confided to others that the timing might not be right for old-age insurance.
Perkins was furious and confronted him, arguing that the nation’s dire condition might provide the political opportunity for a bold initiative. When Roosevelt gave her a Christmas deadline, Perkins invited the committee to her home, placed a bottle of scotch on a parlor table, and told them they were not to leave until they had framed a legislative proposal....
Okay -- admit it -- how many of us first came to know the name of Frances Perkins in the movie Dirty Dancing?
Kaiser Health News recently ran a story about the end of life consultations now covered by Medicare. End-Of-Life Advice: More Than 500,000 Chat On Medicare’s Dime offers some interesting statistics on the number of consults. "In 2016, the first year health care providers were allowed to bill for the service, nearly 575,000 Medicare beneficiaries took part in the conversations, new federal data obtained by Kaiser Health News show." In fact, that number is almost double of what the AMA projected for 2016. Although those numbers are good news for the proponents of the law, when compared to the numbers of Medicare beneficiaries overall, the percentage is quite low.
[O]nly a fraction of eligible Medicare providers — and patients — have used the benefit, which pays about $86 for the first 30-minute office visit and about $75 for additional sessions.... Nationwide, slightly more than 1 percent of the more than 56 million Medicare beneficiaries enrolled at the end of 2016 received advance-care planning talks, according to calculations by health policy analysts at Duke University....
The article explores some explanations for these numbers, including lack of knowledge of the benefit by doctors and lingering concerns over the "death panels" controversy.
Friday, August 11, 2017
Here is another tragic news story for a man, age 82, "who had begun showing signs of dementia and would become 'disoriented at times.'"
On Aug. 2, nearly a month after he went missing, maintenance workers reported to fire authorities a discovery: a decomposed body in an elevator car in the parking garage. The body was soon identified as Komisarchik’s. . . .
At some point on or before July 6, Komisarchik stepped inside the parking garage elevator. For reasons that remain unclear, he struggled to get out.
So in an attempt to seek help, Komisarchik pushed the elevator’s emergency button — twice over the course of eight minutes, a Denver Fire Department spokesman told the Denver Post. But no one responded.
Electronic records show that the elevator’s emergency alarm was pressed at 9:09 p.m. and 9:17 p.m. on July 6, the day after Komisarchik was last spotted, according to KUSA. Pushing this emergency button should trigger an alert to an elevator monitoring group or the fire department. But during the time Komisarchik was in the elevator, the fire department received no emergency calls from that car, the Denver Post reported.
“Something is not right,” Capt. Greg Pixley, a Denver Fire Department spokesman, told the Denver Post.
For more details, read "He pushed an elevator's alarm button but no one came. . . ." from the Washington Post
Thursday, August 10, 2017
The GAO has issued a report that examines various federal programs for low-income individuals. Federal Low-Income Programs: Eligibility and Benefits Differ for Selected Programs Due to Complex and Varied Rules offers the following findings
Six key federally funded programs for low-income people vary significantly with regard to who is eligible, how income is counted and the maximum income applicants may have to be eligible, and the benefits provided. In fiscal year 2015, the most current data available, the federal government spent nearly $540 billion on benefits for these six programs—the Earned Income Tax Credit (EITC), Medicaid, the Housing Choice Voucher program, Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). The target population for each of these programs differs, for example, people who are elderly or disabled or who have dependent children. Further, some programs have conditions for continued eligibility, such as participation in work activities under TANF. The six programs also vary in what income is and is not counted when determining an applicant's eligibility. For example, certain programs, such as SNAP, disregard a portion of earned income, while others do not. The maximum amount of income an applicant may have and still be eligible for benefits, which is determined for some programs at the federal level and for others at the state or local level, also differs significantly. As of December 2016, this amount ranged from $5,359 per month for one state's Medicaid program to $0 per month in one state for TANF cash assistance, for a single parent with two children. Benefit levels also differed across the six selected programs, with average monthly benefits for these programs ranging in fiscal year 2015 from $258 for SNAP to $626 for Housing Choice Vouchers, and four of the six programs adjust benefits annually.Legal, administrative, and financial constraints pose challenges to efforts to streamline varying eligibility rules for federal low-income programs, according to GAO's current and previous work. A key challenge is that the programs are authorized by different federal statutes enacted at different times in response to differing circumstances. Other laws, such as appropriations laws, can also have an impact on federal programs and their rules. As a result, streamlining eligibility rules would require changing many laws and coordination among a broad set of lawmakers and congressional committees. A further challenge is that a different federal agency or office administers each program GAO reviewed. For some of these programs, such as TANF, state governments also establish some program rules, making it more difficult to streamline rules at the federal level within or across these programs. Finally, financial constraints may also affect efforts to streamline program rules. For example, if rule changes raise the income eligibility limit in a program, more people may become eligible and that program's costs may increase. Despite these challenges, Congress, federal agencies, and states have taken some steps to streamline program administration and rules, such as by making greater use of data-sharing where permitted by federal law and aligning programs' applications and eligibility determination processes. For example, SSI recipients in most states are automatically eligible for Medicaid, and GAO previously reported that some states have integrated the SNAP eligibility process with other low-income programs, such as through combined applications and common eligibility workers.
Wednesday, August 9, 2017
The Florida State U. Center for Innovative Collaboration in Medicine & Law along with the Florida Bioethics Network will hold the annual Medicine-Law Conference on Monday, January 22, 2018 at the Florida State University Alumni Center in Tallahassee. The 2018 conference theme is Health Professional/Attorney Collaboration on Behalf of Patients and Clients. More info will be available from the Center for Innovative Collaboration in Medicine & Law.
The Washington Post carried a recent story by Samantha Schmidt on the tragedy that befell the Tarnowski family in Minnesota when Mary, age 78, and Ron, age 81, somehow wound up stranded with their car on a remote rural trail. Sadly, they both perished, with heat and dehydration likely factors in their deaths.
One element of the story has attracted a lot of reader attention -- the report that Ron Tarnowski, who had been his wife's primary caregiver for more than 35 years, was "showing signs of early-stage dementia" in recent years. Implications from this label raise questions for many.
From the article, a facebook page, and the obituary, it is apparent that the couple's two sons were very caring and attentive. One son had built them a home "adjacent to his own so he could keep an eye on them." That son's wife had given his mother a bath and cooked breakfast for the couple earlier on the day they went missing, and the fact that they were missing was reported the very same day. Despite the sons' attentiveness, and the all-out efforts of authorities and volunteers to locate the missing couple, the search lasted eight days.
I read with interest the comments to the story posted on-line at the Washington Post website. I expected there would be "flamers" and shaming, so typical of many on-line comment websites. But for the most part, the readers showed kindness and empathy, especially as they told their own stories of struggles to balance protection with respect, attempting to preserve autonomy of beloved family members who are aging.
Significantly, many readers addressed the potential for modern technology in the form of automated trackers on cars and cell phones to help avoid, if not completely prevent such a tragedy.
Sunday, August 6, 2017
Mark your calendars for August 16, 2017 at 2:00 p.m. edt for a free webinar from Justice in Aging on In-Kind Support & Maintenance (ISM). Here's a description of the webinar:
Why do many clients receiving Supplemental Security Income (SSI) benefits only receive $490 each month instead of $735, and what can we do about it? In many cases, the reason is “in-kind support and maintenance” (ISM). A person who receives shelter and food from a friend or family member they live with is receiving in-kind support and maintenance. The Social Security Administration (SSA) counts that support as income and lowers their benefit. The ISM rule is unique to the SSI program, and causes a lot of confusion for recipients, advocates, and SSA. This free webinar, In-Kind Support and Maintenance, will explore the ins and outs of ISM, provide examples of how the rule works, and offer strategies for dealing with the rule. As SSI is a means-tested program, applicants and recipients must meet several financial eligibility criteria on an ongoing basis. The income and resources rules, including “in-kind support and maintenance,” are particularly complicated. These rules can cause significant hardship for low-income people trying to survive on SSI. Giving advocates the tools to successfully navigate the rules on behalf of their clients can make a big difference. The recipient in the example above could have an additional $245 per month for necessities like health care expenses, household expenses, transportation, and other basic needs.
To register for this webinar, click here.
Saturday, August 5, 2017
Justice in Aging is offering a free webinar on Tuesday August 8, 2017 at 2:00 p.m. edt on Bankruptcy Protections for Older Consumers. Here's the description of the webinar:
An increasing number of older consumers are struggling with unmanageable debt. Debt collectors are using aggressive tactics to pursue older adults with limited resources, making it critically important for legal services attorneys to understand protections that may help their clients. Bankruptcy may help older consumers eliminate debt and preserve income needed to pay rent, buy food, and keep the lights on. This free webinar, Bankruptcy Protections for Older Consumers, outlines the issues facing older consumers and offers strategies to address the challenges. This session will highlight the various protections available and alternatives to filing for bankruptcy.
Click here to register for this webinar.
Friday, August 4, 2017
The Uniform Law Commissioners recently approved the new guardianship act. The prior act, the Uniform Guardianship & Protective Proceedings Act was approved in 1997. The new act, the Uniform Guardian, Conservatorship & Other Protective Arrangements Act was approved in mid-July at the ULC's 126th annual meeting. Terminology has changed with this new act, with the use of incapacitated person falling by the wayside. Instead, the act refers to "adult subject to guardianship" or adult subject to conservatorship" both of which are defined in Section 102. Less restrictive alternative now includes supported decision-making, along with other alternatives such as a health care or financial power of attorney or representative payee. More emphasis is put on protective arrangements (Article 5 of the Act) as an alternative to guardianship. Another version of the new act with a prefatory note and commentary will be available on the ULC website soon.
Wednesday, August 2, 2017
Clark County, Nevada has been at the center of serious allegations of abuse by court-appointed guardians, including "public" guardians, as we have reported here in the past. Most recently, the county was the site of a conviction and sentencing of a woman who was charged with theft from her "long-time companion," the incapacitated person she was appointed to protect.
Helen Natko was found guilty by a Las Vegas jury in April of theft and exploitation of a vulnerable person:
Natko raised suspicions when she transferred nearly $200,000 out of a joint account. Natko returned the money but that's when Del's daughter, Terri Black, tried to protect her father leading to a guardianship case.
"That began our 4 year odyssey of pain and sorrow that continues to this day for my family," says Terri. She says the most painful part was not having quality time with her father in his final days.
Although the prosecutor (and the protected person's family members) sought "prison time" following the conviction, ultimately the state court judge sentenced Natko to 5 years probation, a $10,000 fine and a bar on "gambling." Further, according to Las Vegas Contact 13 KTNV news reports, "she's disqualified to be a guardian under new laws passed" since the channel's investigation and news series exposed problems in the county's guardianship system.
For more see Contact 13: Guardian Sentenced to Probation. My thanks for the update from Rick Black, the son-in-law of the victim in this case. It's been a long haul for the family. Mr. Black commented, "We are satisfied with the [July 31, 2017] sentence. Although we wanted prison time, it wasn't in the statutes. Thanks to the many victim family members and advocates who came to support Terri [Rick's wife]."
Mr. Black is a volunteer with Americans Against Abusive Probate Guardianship (AAAPG), which was founded in Florida in 2013 by Sam J Sugar, M.D., in response to his own experiences in the Miami-Dade probate court.
My thanks to those who wrote to correct my earlier mistake in describing the history of AAAPG.
August 2, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Friday, July 28, 2017
Neuroscientist Lisa Genova PhD, author of the novel Still Alice (that, in turn, became the movie with Julianne Moore in the leading role), has an encouraging new piece on Ted Talk on what all of us can and should do now to reduce the risk of Alzheimer's or even slow the disease after diagnosis. As she says, "DNA alone does not determine whether you will be symptomatic for Alzheimer's." It is one of a multi-part feature on Ted Talk addressing various "Prevention" topics. Here's and NPR link to the 14 minute podcast for Lisa's piece, "What You Can Do to Prevent Alzheimer's?"
Correction: My thanks to the readers who caught my typo -- it's "Still Alice," not Still Alive, for the title to the book and movie I've linked here!
The GAO has issued a new report regarding the FDA's right to try approach to experimental drugs. Investigational New Drugs: FDA Has Taken Steps to Improve the Expanded Access Program but Should Further Clarify How Adverse Events Data Are Used reviews the FDA's increased access to experimental drugs. Here's the findings from the report:
Under the Food and Drug Administration’s (FDA) expanded access program, patients with serious or life threatening ailments and no other comparable medical options can obtain access to investigational drugs outside of a clinical trial. Expanded access requests must be submitted to FDA but manufacturers must also grant permission for patients to access their investigational drugs. Of the nearly 5,800 expanded access requests that were submitted to FDA from fiscal year 2012 through 2015, FDA allowed 99 percent to proceed. Almost 96 percent of these requests were for single patients (either emergency or non-emergency). FDA’s review process for expanded access requests is designed such that all requests are either allowed or not allowed to proceed within 30 days of receiving each request. FDA typically responded to emergency single-patient requests within hours and other types of requests within the allotted 30 days.
FDA and other stakeholders, including a non-profit organization and a drug manufacturer, have taken steps to improve the expanded access process and patient access to drugs... Some states have also enacted "Right-to-Try" laws to facilitate patient access to investigational drugs. These laws provide liability and licensing protections for manufacturers and providers under state law if an adverse event—such as an adverse reaction to the drug—occurs with patients who were allowed access to investigational drugs. However, some stakeholders GAO interviewed cited concerns that these laws may not help patients access drugs, in part because they do not compel a manufacturer to provide access.
Manufacturers sponsoring clinical trials must submit safety reports to FDA that include adverse events data resulting from clinical trials and any expanded access use, to be used in assessing the safety of a drug within the drug approval process... Further, some of the manufacturers told GAO the guidance was unclear. These manufacturers noted that the lack of clear information can influence their decision whether to give patients access to their drugs because of their concerns that an adverse event will result in FDA placing a clinical hold on their drug, which could delay its development. This could impact FDA’s goal of facilitating expanded access to drugs for treatment use by patients with serious or life-threatening diseases or conditions, when appropriate.
Thursday, July 27, 2017
The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.
When I teach Wills, Trusts & Estates, I always include a few of the latest news articles or case reports that focus on LegalZoom or other, less high-profile on-line document drafting venues that are used directly by consumers. Alex's article examines the implications of formalism for this important reality. Thanks, Alex!
Wednesday, July 26, 2017
Good news for all of us! The July 2017 issue of Today's Research on Aging from the Population Reference Bureau reports a proportional decline in dementia. Dementia Trends: Implications for an Aging America explains that
While the absolute number of older Americans with dementia is increasing, the proportion of the population with dementia may have fallen over the past 25 years, according to a recent U.S. study (Langa et al. 2017). Researchers say this downward trend may be the result of better brain health—possibly related to higher levels of education and more aggressive treatment of cardiovascular risk factors such as high blood pressure and diabetes.
After discussing the research, the research report also notes this
The decline in dementia prevalence coupled with longer life expectancy may be contributing to another change: A growing share of older Americans are spending less of their lifetimes with cognitive impairments, another recent study based on HRS data and vital statistics shows (Crimmins, Saito, and Kim 2016). The gains in life expectancy between 2000 and 2010 represent more time older Americans spend cognitively intact, the researchers report. The share of Americans 65 and older without cognitive problems increased by 4.5 percentage points for men and 3.4 percentage points for women during the decade. At the same time, the average time older people spent with dementia or cognitive impairment shortened slightly.
The report discusses the various theories and work done to help with "brain training", the correlations (if any) between certain diseases and dementia, and policy and budgetary implications. The report concludes:
Improvements in understanding, diagnosing, preventing, and treating Alzheimer’s disease and other dementias are top NIA priorities. The 2011 National Alzheimer’s Project Act and related legislation lay the foundation and provide new funding for “an aggressive and coordinated national plan to accelerate research.” This initiative includes research designed to better answer the following questions:
•What roles do education and intellectual stimulation play in delaying or preventing dementia?
•What are the connections among dementia, cardiovascular disease, obesity, and diabetes?
•What are the best ways to reduce the dementia risks that minority group members face?
Refining our understanding of the answers to these questions can enable policymakers and
planners to design and test prevention strategies that can contribute to continued future decline
in dementia prevalence.
The National Adult Protective Services Association (NAPSA) and the National Council on Crime and Delinquency announce a free upcoming webinar, The Abuse Intervention Model: A Pragmatic Approach to Intervention for Elder Mistreatment. Set for August 9, 2017 at 2 p.m. edt, the "webinar will present the Abuse Intervention Model (AIM), which is a simple, coherent framework of known risk factors of the victim, perpetrator, and environment that applies to all types of abuse. Dr. Laura Mosqueda will discuss the details of the AIM, and present case studies on how the AIM can be applied to APS work." Click here to register. To read more about the intervention model, click here.