Saturday, December 20, 2014
Here is a link to a podcast for a Smart Talk program from WITF Public Radio, where Zygmont Pines, Esq., Court Administrator for the Commonwealth of Pennsylvania and I were invited to talk about quite a few "hot" topics from Pennsylvania Supreme Court's Elder Law Task Force. The Task Force released its big Report and Recommendations last month.
The topics strike me as quite universal, not Pennsylvania specific. If you make it to the last few minutes (or skip ahead), there is an especially poignant moment with a family caregiver, who tells a real life story that will strike a chord with many.
December 20, 2014 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Friday, December 19, 2014
New York Times Op-Ed Columnist Frank Bruni recalls his own reluctance to confront the realities of Alzheimer's, offering a touching account of his own grandmother many years ago, whose condition caused him to turn away. But as he also points out in his column, "Confronting an Ugly Killer," "the world is different now. Much of the unwarranted shame surrounding Alzheimer's has lifted. People are examining it with new candor and empathy."
As evidence for his observation, he points to the latest movie, Still Alice, with Oscar buzz already starting for Julianne Moore's performance.
Wednesday, December 17, 2014
Reason for celebration. Not only did Congress act, but it came together to help those with disabilities. The Achieving a Better Life Experience (ABLE) Act cleared the Senate on Tuesday on a vote of 76 to 16, which is the last step on its way to the President. As Gail Russell Chaddok of the Christian Science Monitor observes:
"But the reasons for its success go deeper and point to potential bipartisan paths forward on one of Congress’s most intractable issues: entitlement reform. The aim of the ABLE Act is to remove bureaucratic obstacles to help Americans save their own money to help pay for long-term care. To some activists, that could provide a template for reforming Medicare and Social Security in the next Congress.
The ABLE Act helps people with disabilities save for college and retirement. Under current law, a child diagnosed with a disability can’t have assets worth more than $2,000 or earn more than $680 per month without forfeiting eligibility for government programs like Medicaid. The ABLE Act would allow a tax-free savings account up to $100,000 to pay for disability-related expenses."
Tuesday, December 16, 2014
Mark Friedman, an elder law and special needs attorney from New Jersey, recently wrote to comment on the important series offered by National Public Radio on use and misuse of certain medications in long-term care settings. Here is what Mark said:
"NPR ran a story on 'chemical restraints,' - nursing homes using anti-psychotic drugs to make unruly residents more pliable. According to the article, the residents are usually Alzheimer’s or dementia patients, and anti-psychotics can make the residents easier for staff to manage. But the drugs can be dangerous, increasing a resident’s risk of falls and exacerbating health problems. At high doses, anti-psychotics can also sap away emotions and personality and put the resident into a 'stupor.'
Administering drugs in this manner, any drugs, including anti-psychotics, without medical need and for the convenience of staff, is contrary to federal regulations. Unfortunately, it may also be widespread.
The NPR story includes a tool drawn from CMS data that shows the rate of residents on anti-psychotics at nursing homes across the country. You can look up the facility in which your loved one resides.
The news coverage shows that this issue is getting increased attention, and that’s a good thing. I think that as Americans age and more people have spouses and parents in nursing homes, the use of anti-psychotics as chemical restraints will have to diminish or end. People won’t stand for their loved ones being drugged into a stupor."
Thanks, Mark, for making sure we included this topic and the latest links for more coverage and your additional commentary. Along the same lines, I listened to an interesting follow-up conversation on AirTalk, a Los Angeles public radio affiliate's program, discussing "How California is Doing in the National Fight to Curb Over-Medication of Nursing Home Patients." That program, now available as a 23-minute podcast, included an articulate medical professional, Dr. Karl Steinberg, who described how he sees medication practices changing in long-term care, including better use of behavior health techniques, rather than medication, to help residents.
December 16, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0) | TrackBack (0)
Monday, December 15, 2014
The Washington Post has had several articles over the last two years, examining records of debt collection effforts and individual cases where "overpayments" are alleged by the Social Security Administration, leading to claims not just against the direct beneficiaries of the benefits, but also against family members. Sometimes the claims are made many years after the alleged payments took place, making it hard for families to understand the basis of the claims or to defend against the claims. In April of 2014, as we summarized here, following protests the SSA announced it was immediately suspending its intercept program -- used to target IRS tax refunds -- for purposes of stale debt collection. As I commented then, it seemed SSA was more concerned about the government's "self help" approach to debt collection, than answering questions about how and why it was seeking refunds from children of the alleged debtors.
Is this a SSA-specific form of "filial support" claims, where children are liable for certain debts of their parents, or are the claims based on a theory of indirect benefit to the children?
George Washington Law Professor Naomi Cahn alerted us to the latest news on renewed debt collection by SSA from the Washington Post. (Thanks, Naomi!) Some of the same families who were granted refunds of intercepts earlier in the year, were once again asked to pay their ancestors' debts. Five of the families have filed a lawsuit to seek answers, and the Post has also asked for an explanation, apparently with less than satisfactory results:
"Asked to explain the about-face, Social Security officials said they would respond only to written questions. Late Friday, four days after The Post provided questions, the agency issued this statement from spokesman Mark Hinkle: 'We are finalizing our review of the Treasury offset program, but cannot discuss specifics due to the pending litigation.' The offset program is Treasury’s effort to collect on debts to Social Security and other agencies by confiscating Americans’ tax refunds."
For more on the controversy, read Marc Fisher's article, "Social Security Continuing to Pursue Claims for Old Debts Against Family Members" from the Washington Post.
Wednesday, December 10, 2014
Earlier this year, Kim Dayton reported in our Blog (here) about the new CARE Act, enacted in Oklahoma as a means to provide better transition from facility-based care to home care for individuals needing support. The CARE Act is a nation-wide project sponsored by AARP and thus I was excited to be invited to participate in an AARP Pennsylvania Family Caregiver Summit, as part of the discussion about introduction and passage of a CARE Act in my state.
The Summit was held yesterday with administrative agency heads, legislators and their staff invited to attend. The turnout was probably a bit affected by the weather reports for the day. (What happened to the predicted Nor'easter, anyway? Not that I'm complaining about winter weather that proves to be milder than predicted!) I found the event very interesting. As so often happens, I ended up being more of a student than a teacher, even while serving as a panelist.
It was quickly clear that virtually everyone in the room had experience with or personal awareness of the challenges of serving as a family caregiver under stress. The room was practically vibrating with stories about how tough it can be to know what to do when you confront the reality that a parent or other aging family member needs significant support. The keynote speaker, Cate Barron, a vice president of the PennLive and Patriot-News media group and by her own admission a take-charge kind of gal, spoke with great candor and humor about the process of realizing that a "diagnosis" of what is wrong did not necessarily provide answers to her mother's need for assistance. We are so pre-programmed to believe that if we can find the right diagnosis of the problem, there must be a "solution" worth pursuing.
The opening presentation by Glenn Fewkes from the AARP National office provided the latest statistics and graphics about aging in the U.S. What I found especially interesting were his graphics about Long-Term Services and Supports (LTSS) for individuals with caregiving needs. It turns out Pennsylvania ranks near the bottom (42nd, according to the most recent statistics) on a national scorecard. evaluating LTSS for affordability and access. That means the state with the fourth "oldest" population has some real challenges ahead.
That is where AARP's CARE Act project comes into play as a first step to improve supports for individuals needing care. As we reported earlier, CARE is an acronym for "Caregiver Advise, Record and Enable" and AARP's model has straight-forward objectives. To me, a key goal in adopting the model CARE Act is to create smoother transitions. This can be facilitated by making sure that hospitals or rehab facilities have clear information about any designated "caregiver," that they give notifice of discharge at least 4 hours in advance, and that they offer practical instruction on any medical tasks that will need to be performed in the home. For example, under the model CARE Act, the instruction shall include:
- a live demonstration of needed "after-care tasks"
- an opportunity for caregiver and patient to ask questions
- answers to the caregiver and patient questions "provided in a culturally competent manner and in accordance with the hospital's requirements to provide language access services under state and federal law."
My own research has shown that family members often cite "access to accurate information" as one of the most important first needs for families responding to caregiving crises. The CARE Act is clearly intended to respond to a critical first window of need -- hospital discharge -- by requiring facilities to give useful information and relevant instruction.
During the Family Caregiver Summit, there were a lot of good questions about the CARE Act, and it was great to have Pennsylvania State Representative Tim Hennessey on the panel. In his role as majority chair of the House Aging and Older Adult Services Committee, it is likely he will be able to provide early analysis and support for the CARE Act in Pennsylvania.
As part of my own preparation for the Summit, I took a closer look at Oklahoma's result with the CARE Act. Title 63 Okla. St. Ann. Sections 3113- 3117 (the statutory provisions created by the April 2014 passage of Senate Bill 1536) became effective on November 1, 2014. The law requires that hospitals "provide each patient or patient's legal guardian with an opportunity to designate one lay caregiver" following admission, and to record the designated caregiver and the caregiver's contact information in the patient's medical record. Such a choice then triggers the hospital to "request the written consent" of the patient or guardian to release medical information to the patient." Only if the patient both designates a lay caregiver AND gives "written" consent is the hospital then obligated to do anything further with respect to discharge planning with the caregiver.
But what happens in Oklahoma when the written consent to share information with the designated caregiver is given?
Monday, December 1, 2014
Who amongst us have not heard of a senior discount? They are ubiquitous in some areas, such as movie tickets or dining out. Here is one program that allows the recipient of a senior discount to donate it to a charity. The NY Times ran a story about this program, Getting a Senior Discount? Here’s How to Give It Away, which allows the recipient of a discount to donate it. The article tells the story of the Boomerang Giving Project which allowed senior moviegoers to pay full price for their movie tickets and to donate their senior discounts to a charity of their choosing.
More information about the Boomerang Giving Project is available on their website. According to the website, "BOOMERANG GIVING is a national movement of Baby Boomers who dare to imagine the impact we can make as a generation if Boomers with the means reinvest some or all of our senior discount savings back into our communities through charities we each choose ourselves..." The project was also the subject of a story on PBS.
The Boomerang Giving website provides some history on the project. Originating in Washington state, "seven community leaders from Bainbridge Island and Seattle Washington, all dedicated to bolstering future generations through support of nonprofit organizations" created the project with the mission "[t]o redefine Baby Boomers as the generation that gives back. By inventing multiple ways to give back, Boomerang Giving is committed to creating opportunities for the 3.5 million persons who turn 65 each year to increase their charitable giving and join others in supporting their communities."
Returning to the NY Times article, the story notes the upward trend in charitable giving and the benefits of doing so. The obvious, of course, is the help to the charity, but as well, the donor benefits
- "A crucial conclusion from a study published last year in the International Journal of Happiness and Development ... concluded that people feel good when they make a charitable donation — especially through a friend, relative or social connection."
"Harvard researchers found in an experiment that donating to charity can increase physical strength. .. " and
"An increasingly popular way for retirees to stay active mentally and socially is to join a local giving circle."
The article also offers some advice on checking out a charity's legitimacy before committing to a financial contribution and basic charitable planning.
Tuesday, November 25, 2014
Ramping up into Thanksgiving celebration, thinking about the things for which we are thankful---how about adding caregivers to that list? Huffintong Post Third Metric ran a three-part series earlier this month on Unsung Heroes: The Face of American Caregiving. The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Partner, the first installment in the series, focused on eleven extraordinary caregivers providing care to spouses/partners. The second, The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Parent covers 10 family members providing care for their parents., 9 of whom are over the age of 50. The final installment, The Unsung Heroes Who Give Up Everything To Take Care Of Multiple Loved Ones covers ten amazing individuals who have provided care for multiple generations.
Knowing the statistics on caregiving, a number of us will be called upon to provide the care. These folks will inspire you. Happy Thanksgiving.
Monday, November 24, 2014
I'm a senior faculty member at my law school. It doesn't seem like that long ago I was junior faculty and one day I realized I was now one of "them". I don't even recall being "middle management" but I must have been so, for a few years. So first as an elder law prof and second as a senior faculty member, I've been interested in a couple of articles published in the Chronicle of Higher Education. The first article, The Forever Professors appeared in the Chronicle Review on November 14, 2014 in the Opinions and Ideas section. The next, Ageism in Academe, appeared Novembere18, 2014 in the Chronicle's blog.
There are a number of issued raised in this articles, and it appears there is a fair amount of interest, both with the Forever Professor piece and The Ageism post when you consider the number of comments posted to the two. I'm sure we all cover aging and ageism in our classes and it engenders good discussions.
I wondered about whether to integrate in my classes the points made in these Chronicle articles (note, neither of these profs are law faculty-whether this is relevant or not). I am not going to summarize or comment on the two articles. I do encourage you to read them...and the comments.... and draw your own conclusions about the teaching points we can glean from them. Meanwhile, I'm going to ponder them further while I think about preparing for the next semester's classes.
Thursday, November 20, 2014
The Institute of Medicine (IOM) has released a great graphic on palliative care. What Should You Know About Palliative Care? has six graphics on topics including scope, function, location, family services and the benefits of palliative care. The infographic can be downloaded or a poster can be ordered by sending an email. The webpage also includes a link to the IOM report, Dying In America
If you recognize the quoted language from the title above, you can imagine me humming the lyrics to "Silver Bells" as I type. Perhaps we should add a new refrain. As detailed in the Los Angeles Times piece on "Residents Celebrate the 100th Repaired Sidewalk in South L.A. District," safe sidewalks are important to everyone, but particularly to people who have mobility issues, including some older adults. In the article, a stretch of deteriorated sidewalk outside an 84 year old woman's home prevented her for using her walker to get around her neighborhood. The challenge of accomplishing something as seemingly simple as this infrastructure issue, is demonstrated by the statistics in the article, showing there are 11,000 miles of sidewalks in L.A., and an estimated 40% are in need of repair.
The question of how to pay for sidewalk repairs is significant for cities. In Los Angeles, for example, policies on sidewalks can conflict with developers' preference for streets lined with trees. Tree roots are often the cause of sidewalk damage. For a number of years in the 70s, the city offered free repairs for sidewalks damaged by tree roots. But as budgets tightened, public funding was withdrawn, and subsequent efforts to create alternative funding for sidewalk repairs have been controversial.
In my own small community, there is an ordinance that permits the governing body to mark sidewalks in need of repair with a big X (and for some reason they do so with pink paint), and the home or business owner has a fixed amount of time to make the repairs, or be subject to public repairs at a potentially higher price. Obviously this approach won't work in every community -- and it is probably less than cost effective unless adjacent property owners work together to save money on contractors.
By the way, while humming along on this topic, I discovered that there is a relevant, highly placed, law review article -- mostly dealing with sidewalk safety in winter weather -- published in 1897 in Yale's legal journal. See "The Law of Icy Sidewalks in New York State," 6 Yale L. J. 258. In this article I learned the interesting historical fact, that at least in some jurisdictions of the day, "it is not negligence for a person to walk upon an icy sidewalk without rubbers."
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
Thursday, November 13, 2014
With the most recent news about actor Robin Williams as possibly having Lewy Body Dementia, readers might find free webinar materials from Morningside Ministries useful, at their website mm.learn.org. Look for the "In the News" link -- the materials strike me as objective and thoughtful.
Tuesday, November 11, 2014
Penn State Dickinson Law's Registrar, Pam Knowlton, has a not-so-secret life as seamstress, trainer and godmother to several of the most patient dogs on earth. Newman, Thelma and Roger will be hard at work again on Veterans' Day, with scheduled visits at nursing homes and care centers around the mid state. It is pretty much impossible not to smile when these therapy dogs report for duty.
Roger, a French bulldog, apparently has combat training too. Newman, the boxer, has his own blog....
Friday, November 7, 2014
Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.
Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.
Bloomberg Visual Data: Elder Care Sex Survey Finds Caregiviers Seeking More Training
The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review.
November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 5, 2014
One of the more positive developments is how many people are devotees of yoga. I was interested to see a D.C. Bar advertisement for "Cultivating Contentment with Yoga: Living and Lawyering Series." At the same time I was amused when I read that following the yoga session there would be an "active discussion on the presented topic." Lawyers.... we can't stop talking can we?
I'm happy to report that at my own law school, a couple of years ago our dean (yes, Dean Gildin -- he's a devotee!) added yoga to our on-campus opportunities. Students, faculty, staff and even family members are welcome. A great way to help all of us strive for balance, at every age. In fair weather the sessions are on the lawn; when it gets cold or wet everyone moves into our courtroom.
Sadly, however, neither the D.C. Bar nor our law school gives educational "credits" for the sessions. Remember, virtue is its own reward.
Tuesday, November 4, 2014
Tommorow we have respite, for at least a few months, from the barrage of political ads. In the meantime, I have to say that this season there seems to be an exceptionally high number of television ads involving the candidates' own family members, and the older the better, it seems.
Former President Jimmy Carter, age 90, has been campaigning across Georgia on behalf of his grandson Jason. In Pennsylvania, one governor candidate has his mother on commercials and appearing at campaign stops, explaining how her son knows the importance of protecting seniors. In Maryland, a judicial candidate for a probate court position, explains that he decided to run after "caring for several elderly family members for several years." Perhaps you have examples from your state?
It could be that such a strategy reflects a hard truth, that younger voters are largely alienated by the current political scene and unlikely to vote. A core community of potential voters? Those age 60+.
November 7, Election Post Script: Jimmy Carter's son Jason was defeated in his campaign for governor of Georgia. Tom Wolf's mother joined in the celebration of her son's election to governor of Pennsylvania. Thomas Walsh was defeated in his general election bid to retain his seat as an Orphans Court Judge in Maryland. Older relatives are not, it seems, a magic bullit for candidates.
Monday, November 3, 2014
While I was in California last summer, a friend introduced me to Lillian Hyatt. I had already known of her by reputation and it was a real pleasure to speak to her in person and to continue our communications by telephone and mail. She's a dynamo, a person who does not take aging "lying down." Born in 1925 (believe me, she doesn't mind me disclosing that fact!), Lillian Hyatt is just about as active in "retirement" as she was during her many years as a writer, consultant, advocate, social worker, and university professor.
So I was especially interested to notice that when I clicked on a hyperlink embedded in a recent New York Times article about the impact of "falling" in an "aging nation," it took me to a press release about Lillian Hyatt. Back in 2008, Ms. Hyatt filed suit against a California Continuing Care Retirement Community (CCRC), to prevent it from banning walkers from the dining room of this high-end retirement community. She needed the walker to maneuver in what was, in essence, her home.
The lawsuit, asserting violation of the federal Fair Housing Act and other state and federal laws that address discrimination based on disability, was settled in 2010. Others have pursued similar claims in assisted living settings, public spaces and more. For more on the continuing impact of Ms. Hyatt's advocacy -- even though, curiously, she is never mentioned by name in the NYT article -- read "Bracing for the Falls of an Aging Nation." Advocates such as Ms. Hyatt challenge all of us to work harder to find a better balance between protection and respect for independence.
Tuesday, October 28, 2014
Those of you watching the planning of the 2015 White House Conference on Aging will be interested in the most recent blog post from WHCOA executive director, Nora Super. Director Super mentions in her blog post that some “common threads” are emerging from her community conversations. Those threads include retirement security, healthy aging, community supports and services, and preventing abuse, neglect and exploitation. “These four issues will provide the focus areas for the 2015 White House Conference on Aging. They are intended to support the dignity, independence, and quality of life of older Americans at a time when we’re seeing a huge surge in the number of older adults.” The entire post can be read here.
Monday, October 27, 2014
Last week I was part of a panel hosted by the National Continuing Care Residents' Association (NaCCRA) in Nashville, a component of the larger (much larger!) annual meeting of LeadingAge. The theme for the panel was "Resident Engagement in Continuing Care Life" and for my part of the panel, I used an interesting Third Circuit bankruptcy court decision, In re Lemington Home for the Aged, to discuss whether residents of financially troubled CCRCs should be treated as entitled to enforce specific fiduciary duties owed by the CCRC owners to creditors generally, even unsecured creditors, fiduciary duties that may give rise to a direct cause of action connected to "deepening insolvency."
Jennifer Young (pictured on the left), a CCRC resident, talked about what it is like to "be" an unsecured creditor in a CCRC's Chapter 11 bankruptcy court proceeding. Her explanation of how creditors' committees operate in bankruptcy court (including how they hire legal counsel and how that counsel is paid out of the Debtor's estate) was both practical and illuminating. The closing speaker on the panel was Jack Cumming (below left). Jack's has deep experience as an actuary and a CCRC resident. He noted the disconnect between the intentions of providers and the realities faced by residents and called for stronger accountability in investment of resident fees. I always come away from my time with Jack with lots to think about. Our moderator was NaCCRA president Daniel Seeger (right), from Pennswood Village in Pennsylvania.
In my final comments, I reminded our audience that even though our panel was focusing on "problems" with certain CCRC operations, including some multi-site facilities, many (indeed most) CCRCs are on sound financial footing, especially as occupancy numbers rebound in several regions of the country. Both panelists and audience members emphasized, however, that for CCRCs to be able to attract new residents, the responsibility of the CCRC industry must improve. For more on these financial points, go to NaCCRA's great educational website, that includes both text and videos, here.
Interestingly, during the LeadingAge programming that began on Saturday, October 18 and continued through October 22, I was hearing a lot about a potentially major shift in the long-term housing and service market. Some of the largest attendance was for deep-dive sessions on new service models for "Continuing Care at Home," sometimes shortened to CCAH or CCaH. CCAH is often seen as a way for more traditional CCRCs to broaden their client base, particularly in the face of occupancy challenges that began with the financial crisis of 2008-2010.
As a corollary of this observation about market change, one of the topics under debate within the leadership of LeadingAge is whether Continuing Care Retirement Communities need a new name, and I can see movement to adopt a name that aligns better with the larger menu of non-facility based services that many providers are seeking to offer.
Of course, as a law professor, I wonder what these market changes mean for oversight or regulation of new models. Not all states are keeping up with the changes in the Continuing Care industry, and name changes may complicate or obscure the most important regulatory questions.