Sunday, December 10, 2017
I was reading the article, Things I’ll Do Differently When I’m Old, in the New York Times. The author writes about a do and not do list. What is this type of list? "It was a highly judgmental, and super secret, accounting of all the things I thought my parents were doing wrong. . . It was all too easy to call them out, and I recognized over and over just how awful it is to become feeble, sick and increasingly absent-minded, or worse."
Why such a list? According to the author, it arose out of watching the impact of their poor decisions on his parents. For example, his mother continued driving past the time of her capability or his father's refusal to use an assistive mobility device. Learning from our elders' "mistakes" is nothing new, but making a list that applies specifically to one's older age is an interesting concept. Wonder what is on the author's list? Items include driving ability, accepting help to maintain independence, maintaining physical appearance, not lash out at others and treat them with respect and kindness.
The author notes that his grandmother had a similarly intended list that he found going through his dad's papers. He concludes "I certainly hope to learn from her errors, and my parents’, and avoid making too many of my own. Mostly I hope to be able to judge when to stop adding to the list, and start following its advice."
Friday, December 8, 2017
A haunting story and visual images of growing old alone in Japan, from the New York Times, including this excerpt:
To many residents in Mrs. Ito’s complex, the deaths were the natural and frightening conclusion of Japan’s journey since the 1960s. A single-minded focus on economic growth, followed by painful economic stagnation over the past generation, had frayed families and communities, leaving them trapped in a demographic crucible of increasing age and declining births. The extreme isolation of elderly Japanese is so common that an entire industry has emerged around it, specializing in cleaning out apartments where decomposing remains are found.
For more, see A Lonely Death, by Norimitsu Onishi, published November 30, 2017.
Thursday, December 7, 2017
The National Academies of Science, Engineering and Medicine released information about planning for a workshop Physician-Assisted Death: Scanning the Landscape and Potential Approaches - A Workshop
The 2014 case of Brittany Maynard, a 29-year old woman suffering from terminal brain cancer who made public her desire to have an option to end her life through medication, brought to the forefront of the public eye the age-old question of whether terminally ill patients should have access to a physician's assistance to hasten death. To gain the option, Ms. Maynard relocated from California to Oregon, where a "death with dignity" law has been in effect for nearly 20 years. More recently, five jurisdictions (California, Colorado, District of Columbia, Vermont, and Washington) have legalized physician-assisted death, and physician-assisted death is also legal in one state (Montana) by virtue of a ruling of that state's Supreme Court. The question of whether and under what circumstances terminally ill patients can access life-ending medications with the aid of a physician is receiving increasing attention as a matter of public opinion and of public policy. Ethicists, clinicians, patients and their families debate whether physician-assisted death ought to be a legal option for patients. While public opinion is divided, and public policy debates include moral, ethical, and policy considerations, a demand for physician-assisted death still persists among some patients, and the inconsistent legal terrain leaves a number of questions and challenges for health care providers to navigate when presented with these patients. The Board on Health Sciences Policy of the National Academies of Sciences, Engineering, and Medicine will convene an ad hoc committee to plan a workshop that will explore current practices and challenges associated with physician-assisted death, and highlight potential approaches for addressing those challenges.
Stay tuned for more info.
Wednesday, December 6, 2017
I've told my students urban myths before about a tattooed advance directive and use that story to talk about the requirements for making a valid directive. So I was interested in reading the article about the DNR tattoo. Health News Florida ran the story, Did 'Do Not Resuscitate' Tattoo Reflect Patient's True Wish? reports the story of a patient at Jackson Memorial in Miami with a DNR tattoo. A tattoo presents some significant ethical questions for doctors. As this story reflects, the immediate questions are "is it legal and ... is it truly the man's wishes," In this case the patient presented at the ER alone with no ID and no family were reachable. Taking this to the hospital ethics committee, the committee ultimately determined this was a valid expression of the patient's directions. In this case, the tattoo contained the patient's signature. The Atlantic also ran a story, What to Do When a Patient Has a 'Do Not Resuscitate' Tattoo which reports a split of opinions from experts regarding whether the hospital should honor the tattoo. One expert offers
It’s the discussion that matters, not the words on the form (or the tattoo), says Joan Teno from the University of Washington, who studies end-of-life wishes. And in many cases, those discussions don’t happen, or aren’t respected. In a study of bereaved family members, she found that one in 10 say that something was done in the last month of a patient’s life that went against their wishes. “The fact that someone has to resort to a tattoo to have their wishes honored is a sad indictment of our medical system,” Teno says. “We need to create systems of care where patients have the trust and confidence that their wishes will be honored. That’s the important message from this case.”
Note to readers: republished to correct typo. Note to self-don't post with head cold.
California Law, Amended in 2017, Sets Process for Contesting Transfer Decisions in Continuing Care Communities
Following my recent post about "evictions" in Continuing Care and Life Plan Communities, Margaret Griffin, the president of the California Continuing Care Residents Association (CALCRA) provided me with a copy of legislation that was signed into law by the Governor in October this year, amending California law on Continuing Care Retirement Community (CCRC) contracts. This history is another window on how to handle involuntary transfers of residents. California's law already provided detailed topics that must be addressed in admission contracts. The newest provision requires greater sharing of any reasons for an involuntary transfer. For "disputed" transfers the law now mandates that the provider:
"... shall provide documentation of the resident's medical records, other documents showing the resident's current mental and physical function, the prognosis, and the expected duration of relevant conditions, if applicable. The documentation shall include an explanation of how the criteria [supporting the involuntary transfer decision] are met. The provider shall make copies of the completed report to share with the resident and the resident's responsible person. "
Further, the amended law provides that even though the CCRC has the right -- under certain conditions -- to transfer the resident, the resident may "dispute" the decision and have the reasons reviewed in a timely manner by the "Continuing Care Contracts Branch of the State Department of Social Services" in California. That office has statutory authority to determine whether the facility has followed its own contractual basis and process for transfers, and "whether the transfer is appropriate and necessary."
Ms. Griffin explains that the law "basically . . . requires an assessment be done to establish a functional reason for the transfer (as opposed to merely having the administrator’s whim be sufficient), and it allows the resident to appeal the actual decision (previously we were limited to requesting a review of the process)."
Thank you, Margaret, both for sharing the latest information on CALCRA's successful advocacy with California Assembly Bill 713, and for your additional commentary.
There have been a spate of articles of late regarding various issues surrounding nursing homes, and to some extent ALFs, arising from the hurricanes that hit Florida, Puerto Rico and Texas this past summer. For example, Health News Florida reported that ALFs in Florida were facing a whopping $280 million for generators, Assisted Living Facilities Face $280 Million Tab For Generators resulted from a cost estimate from Florida's Department of Elder Affairs, which "published a summary of the estimated regulatory costs on Wednesday after it received a three-page letter from the Joint Administrative Procedures Committee flagging potential problems with the proposed rule, initially published on Nov. 14. The estimated costs were published in the Florida Administrative Register." The Florida Governor had issued an emergency rule shortly after Irma and the agency has now released a permanent rule to replace the emergency rule. It looks as though there are over 4,500 ALFs in Florida, so it's understandable how the cost of compliance would reach that estimate.
Meanwhile, Health News Florida was also reporting that the cost of generators for nursing homes is less than that estimate for ALFs but still high-$186 million high. Nursing Home Generator Costs Estimated At $186 Million explains this figure, again an estimate, again resulted from the new rule with the total based on "estimates on information provided from the nursing home industry, which said the costs for a generator at a 120-bed facility would be $315,200. Using those figures, [the Florida Agency] estimated the average cost per bed at $2,626.66."
Then there's the story about the plan to recycle Rx meds from Pro Publica that Health News Florida picked up, More States Hatch Plans to Recycle Drugs Being Wasted in Nursing Homes explains "how the nursing home industry dispenses medication a month at a time, but then is forced to destroy it after patients pass away, stop using it or move out. Some send the drugs to massive regional incinerators or flush them down the toilet, creating environmental concerns." Although there are a few programs to "recycle", most of the time leftover drugs are destroyed, some by flushing and others by incinerating. Although in many states, donations of drugs is possible, the story explains "[m]any states ... don’t have programs that get the drugs safely from nursing homes to those who need them."
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)
Tuesday, December 5, 2017
Our friend and colleague, Professor Naomi Cahn at GW Law, sent us a link to a story published in Slate. The Digital Afterlife Is a Mess recounts the tangle created by the number of accounts a person may have, knotted up by company policies and wrapped around various laws.
Today’s world is different. Many of us have chosen to go paperless, so all of our financial statements are delivered electronically; we even file digital tax returns. Our love letters may no longer be written in ink on paper, our reading and listening and viewing interests no longer documented by hardcover books and magazines, record albums, and VCR tapes, and our photos no longer stored in boxes under out beds.
So once the digital asset owner dies, how does the executor gain access to these digital assets and further, determine their value, if any? The article explains the hurdles, including the potential for committing a crime unwittingly by using the decedent's account and password to access digital files. The article turns to the Uniform Act designed to address this growing problem: the Uniform Fiduciary Access to Digital Assets Act, Revised, which has been adopted by almost 2/3 of the states. The Act "allows a fiduciary to manage much of a decedent’s digital property, giving access to many things other than the content of electronic communications (unless this access has been limited by the user or by a court order) and even permitting access to content in certain limited situations." The article explains the 4-tiered system the Act uses for prioritizing and offers practical suggestions such as starting with inventorying your own digital assets, subscribing to an online account management program, and include coverage of digital assets in estate planning documents.
Monday, December 4, 2017
Last year CMS released some changes to the Nursing Home regs, some of which went into effect last, year and others that recently went into effect this year in late November. Consumer Voice has released a summary of significant provisions that just went into effect. Federal Requirements of Participation for Nursing Homes: Summary of Key Changes in the Final Rule Issued September 2016 Phase 2, a 9 page document, highlights both new rules and edited ones. For example, a new rule involves baseline care plans which have to be done within 2 days of admission. One of the modified rules going into effect involves nursing services: requiring not only enough staff, but with needed specific skills and competencies. There's also a new rule regarding nutrition staffing and competencies.
The last phase of implementation doesn't occur until Nov. 28, 2019. For a pdf of the summary of key changes, click here.
Last Saturday, I had the unique privilege to sit in on a day of Advanced Probate Mediation Training, a component of a larger ADR program at the Orphans/ Court for Prince George's County, Maryland. The attendees included long-serving mediators from other court divisions, judges and attorneys and individuals interested in a formal mediation process for probate cases. The facilitators for the training were Mala Malhotra-Ortiz and Cecilia Paizs, very experienced educators and ADR specialists. Chief Judge Wendy Cartwright welcomed us all and made it clear that mediation, collaborative probate and structured settlements are three vital programs for the probate division. Certainly this is part of a trend favoring ADR, now applying to post-death disputes.
My strongest impression of the day was the warm and positive demeanor of the folks I met, especially as they were giving up most of their Saturday. I had the feeling that they were eager to share this experience.
Part of the training involved role plays -- and everyone in the room took the exercises seriously. In Maryland, a challenge to a will is called a "caveat" proceeding, and a threshold question for court administrators is whether a specific dispute seems to be a good candidate for referral to mediation.
In one exercise, I played a minor role (a "grandchild") of the testator, in a fact pattern that involved two named beneficiaries, a biological child and a second beneficiary who wasn't a direct blood relation. The fact pattern was realistic, as both sides wanted "accountings" for pre-death expenses by those serving as the caregiver or POA for the elderly testator before her death. The dispute included a long-history of difficult family dynamics, and was realistic as there was a temptation for other family members to take sides with the primary disputants. We even had an "obstructionist" attorney as an assigned role, someone who was still advocating for the purely "legal" outcome during the mediation.
The majority of the participants were also lawyers -- and I could quickly see how uneasy the fact pattern made some attorneys. One option for the mediated outcome was distinctly "nonlegal" -- i.e., permitting the parties to split the proceeds of the estate in a way that was not the same as the testator's directions in her will. The facilitators did an excellent job in counseling the lawyers on how to change their thinking, so as to allow consensus to emerge for a final, written settlement agreement. The fact pattern also put us in the position of needing to think about whether there had been any pre-death elder exploitation, and if so, to discuss how mediators should handle the possibility of a "crime."
I know our law students are going to be very lucky to have Mala Malhotra-Ortiz join us at Dickinson Law in the near future as an adjunct professor. And, by the way, for anyone interested in why probate courts are sometimes called "orphans' courts," I recommend the Court's link above on the history of Orphans' Courts in Maryland.
December 4, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
In the Wall Street Journal, there is a recent, wonderful profile of Boston University Law Professor Tamar Frankel, who has been fighting the good fight to gain adoption of "The Fiduciary Rule" for financial advisors, investment brokers and others in positions of trust for her entire academic career.
And, at age 92, she's still fighting the good fight, as the Trump administration recently delayed full implementation.
When Ms. Frankel began researching fiduciary law in earnest in the 1970s, she dwelled on that idea: A fiduciary is someone trusted by others because he or she has superior knowledge and expertise. People hire brokers because the brokers know what they’re doing and the clients don’t. That gives fiduciaries power and responsibility over those who trust them.
The unconditional trust that clients place in a fiduciary creates a paradox, argues Ms. Frankel. “When you get power, you lose the power you might otherwise have,” she says.
A fiduciary adviser can’t abuse the relationship of trust by collecting unreasonable compensation or harboring avoidable conflicts of interest. The relationship is meant to satisfy only the needs of the client.
Professor Frankel appears to be remarkably sanguine about the latest delays:
With the Trump administration putting parts of the fiduciary rule on hold, Ms. Frankel counsels patience.
“What the rule has done is sown the seed, and the longer it takes the better off we are, because what we must change is the culture and the habits in the financial industry,” she says. “Habits don’t change in one day. It takes time.”
After she turns 93 next July 4, Ms. Frankel says, she will stop teaching—although she will continue to research and write. What accounts for her longevity? “Caring less and less about what other people think,” she says, “and more and more about questions you don’t have answers to.”
I have a copy of Professor Frankel's thoughtful treatise on Fiduciary Law (Oxford Univ. Press, 2011) on the shelf behind my desk, complete with sticky notes and much yellow and red highlighting. I've been meaning to write Professor Frankel to thank her for her work over the years -- and now this article reminds me to get to that task!
My thanks to my always eagle-eyed friend and correspondent, Karen Miller, in Florida for this latest find and reminder.
December 4, 2017 in Books, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, Retirement | Permalink | Comments (0)
Friday, December 1, 2017
We've been blogging about the fire at the SNF in Pennsylvania and the SNF in Florida during Irma. Here's an update on the Florida SNF in South Florida. Health News Florida reports that 12 of the 14 deaths are being classified as homicides. 12 Of 14 Nursing Home Deaths After Irma Ruled Homicides reports that
Authorities say the deaths of 12 of the 14 Florida nursing home patients who died after Hurricane Irma have been ruled homicides.
The Sun Sentinel reports that autopsy results from the Broward County medical examiner's office were released Wednesday.
No arrests have been made. Police spokeswoman Miranda Grossman says the investigation will continue and part of that will be determining who should be charged.
The article also notes that 2 deaths have been determined not to be related from the lack of air conditioning or electricity.
December 1, 2017 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | 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)
The National Institute on Aging has information for caregivers about various housing options for an elder when the elder can no longer live at home alone. When It's Time to Leave Home offers information for caregivers, not only about housing options, but about things to consider and questions to ask. For example,
Older adults, or those with serious illness, can choose to:
- Stay in their own home or move to a smaller one
- Move to an assisted-living facility
- Move to a long-term care facility
- Move in with a family member
Some families find a conference call is a good way to talk together about the pros and cons of each option. The goal of this call is to come up with a plan that works for everyone, especially your parent. If the decision involves a move for your mom or dad, you could, even from a distance, offer to arrange tours of some places for their consideration.
Before deciding on moving the parent into the caregiver-child's home, the website offers these questions for consideration and discussion:
Is there space in your home?
Is someone around to help the older person during the whole day?
What are your parents able to do for themselves?
What personal care are you willing and able to provide—moving your parent from a chair to a bed or toilet, changing adult diapers, or using a feeding tube, for example?
What kinds of home care services are available in your community?
What kind of specialized medical care is available nearby?
Tuesday, November 28, 2017
Regular readers of this blog know that I will periodically post about identity theft, hacking, etc. even though not specifically elder law issues. With the end of the year looming, I thought it timely to write about a new report from the GAO, Identity Theft: Improved Collaboration Could Increase Success of IRS Initiatives to Prevent Refund Fraud.
The Internal Revenue Service (IRS) launched an Identity Theft Tax Refund Fraud Information Sharing and Analysis Center (ISAC) pilot for the 2017 filing season. It aims to allow IRS, states, and tax preparation industry partners to quickly share information on identity theft (IDT) refund fraud. The ISAC pilot includes two components: an online platform run by IRS to communicate data on suspected fraud, and an ISAC Partnership, a collaborative organization comprised of IRS, states, and industry, which is intended to be the governance structure. As of November 2017, the ISAC had 48 members: 31 states (including full members and those receiving alerts only), 14 tax preparation companies, and 3 financial institutions. In addition, IRS is using a Rapid Response Team (RRT) in partnership with states and industry members to coordinate responses to IDT refund fraud incidents that pose a significant threat within 24 to 72 hours of being discovered. IRS deployed the RRT for six incidents in 2016 and once in 2017.GAO found that the ISAC pilot aligns with key aspects of all five leading practices for effective pilot design GAO previously identified, but none fully. For example, IRS has worked to incorporate stakeholder input, but its message about the ISAC's benefits has not fully reached states. Further, IRS does not have criteria for assessing whether the pilot's objectives have been met. Without this assessment and better alignment with leading practices, IRS, its partners, and Congress will have difficulty determining the effectiveness of the pilot and whether to implement it more broadly.
Given the number of folks whose personal identifying information was stolen in the Equifax hack, let's hope that the IRS efforts are effective. Stay tuned.
Monday, November 27, 2017
A Frameworks Institute initiative, Reframing Aging, now includes a free video on reframing aging and ageism. The video can be ordered here. (Although free, you still need to enter your contact information and then receive an email with login info to start the course. The course info explains that the "lecture series, [provides] a guided tour of how to use new, evidence-based framing strategies to communicate more powerfully about aging as a social policy issue." The sponsors of the lecture series are Grantmakers in Aging and the Leaders of Aging Organizations. Topics include “What's in a Name?,” “The Swamp of Cultural Models,” “Rethinking Narrative,” “Stories to Stop Telling,” “Embracing the Dynamic” and “Confronting Injustice.
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!
Monday, November 20, 2017
The Wall Street Journal published an article by Maddy Dychtwald, The Surprising Benefits and Costs of Family Caregiving. A significant number of folks are already serving as caregivers (40 million per the article) and "[a]s the massive baby-boomer generation hits their 70s, the demand for family caregiving will skyrocket—and it’s poised to become America’s biggest off-the-books industry." The author explains about a survey her company did with Merrill Lynch, "The Journey of Caregiving: Honor, Responsibility and Financial Complexity." The author notes one unexpected positive found in the study is the caregivers finding the act of caregiving benefitting them, perhaps as much as those receiving the care.
The majority of respondents (65%) also said that caregiving has brought meaning and purpose to their life. Most (77%) went so far as to say they would gladly take on the role of caregiver for another loved one. More than half (61%) told us the biggest benefit of being a caregiver is feeling that they’re doing the right thing. And often, caregivers begin to take better care of their own health as a result of their caregiving experience (86%).
The article discusses the obstacles encountered in caregiving, including the role reversals that can make the relationship difficult. "Nearly half (45%) of all caregivers say they are struggling with this, while trying to meet what they tell us are their top three goals: preserving the dignity of their loved one, providing the best care possible, and keeping their loved one out of an institution. Many caregivers also believe part of their role is to make sure the recipient does not feel like a burden, even when they might be."
The article stresses the importance of a family conversation--and early. The talk needs to include financial caregiving, which may end up being a big part of the need.
As it turns out, financial caregiving is a critical part of the picture—but one that’s not often discussed. Financial caregivers in our study are contributing to the cost of care, coordinating and managing finances for their loved one, or both. More than half (52%) of respondents have no idea what they have spent on caregiving-related expenses. In fact, many contribute financially to the care of their loved one even when it’s detrimental to their own financial future.
The cost of caregiving is not easy or comfortable to talk about, but finances are an integral piece of the puzzle. Seventy-five percent of family caregivers have never discussed their financial role with their care recipient. It could be that talking about money is taboo, especially in the face of grave illness, or that the care recipient does not have the mental acuity to discuss finances. But the financial burden and emotional toll can be minimized if families talk it through and plan appropriately.
It’s important to get our heads around the costs and benefits of caregiving now, because it’s likely to be in each of our futures. As founder of the Rosalynn Carter Institute for Caregiving, former First Lady Rosalynn Carter once said: “There are only four kinds of people in this world: those who have been caregivers; those who currently are caregivers; those who will be caregivers; and those who will need caregivers.”