Tuesday, January 16, 2018
My sister and I have been interviewing locations for several weeks as possible residential settings for our mother, especially as she is no longer able to handle the stairs in her two-story home, but feels trapped by not being able to choose on her own where to walk. We know that the best way to approach this task is in small doses, and to do it before there is an emergency that limits choices. This is actually our second go-round, as we also did this with Mom when we were looking at a place for Dad almost 5 years ago. But we have been very struck by the changes in the marketplace in just that short period of time:
- There are many new options, both large and small, that have come into being in just the last five or fewer years. We have looked at "classic" versions of continuing care communities, as well as what I would call "ala carte" pricing options for communities that offer a wide range of care alternatives, but each for a separate, escalating price and with no assurances of a placement. We've looked at both modest settings and high end "assisted living centers" that are so new the paint has not quite dried. But most of all, what we have found ourselves focusing on are smaller group homes, licensed under that state's law for "assisted living," and under that law the care includes almost all necessary care, other than certain so-called skilled services (such as catheters, feeding tubes, or I.V. hydration). We liked the small group setting because they often were in a neighborhood that would make our mother feel at home, while still offering a purposeful renovation that included carefully designed toilets, showers and flooring for easier movement. The price range is stunningly broad between these options, too.
- Doctors are not always the best advisors on choices. We have found that even though our mother has a wonderful primary care doctor, and even though that doctor makes it known that most of his patients are older, he did not seem to be aware that there are group home options. He kept telling us we'd need a "skilled care nursing home." But, as Mom has a pretty detailed end-of-live directive that rejects feeding tubes, and similar skilled care interventions, it seems clear to us that we can look at a well-run facility licensed for assisted living that will be able to provide appropriate care through her last days.
- A lot of the smaller places are accessed through what I would call "brokers." When you do internet research, the odds are that your first contacts will be with some kind of "finder." Most of these are paid by the facilities, rather than the families conducting the searches. As such, there is the clear potential for them to steer families to "their" facility clients. I know from insiders in the industry that the fees are often the equivalent of one month's fee at the chosen location. While not necessarily a negative, as a good broker is only successful if he or she really knows the available inventory of residential options, the fees are something that can dramatically impact smaller group homes that are operating on a narrower margin.
Additional trends we noticed? We discovered that a small group home that appears to be a "family" operation, may actually be part of a chain of homes with a single corporate owner. On the other hand, at several of the places we visited, we learned the owner had recently purchased another house in the same neighborhood, and was in the process of a second renovation. Also, as for staffing, we noticed that in certain parts of the city, all of the caregivers were immigrants from the same country, whether Poland or Pakistan or elsewhere. Another reminder that realistic immigration policies are a key component to senior living.
Finally, probably our strongest reaction was to differences in what can only be called old fashioned "customer service." One "famous," established CCRC completely lost our interest when the person at the front desk never made direct eye contact with us, instead keeping one hand on a cell phone and the other hand on a very dirty "wet wipe" she said she was using to clean surfaces because it was "flu season." It didn't help that we went through three different people to find one who could give us a tour during a scheduled visit (the first two were so new they didn't have knowledge of the full campus.) At the smaller group homes, we definitely noticed when the persons we met with greeted current residents by name as they gave us a tour. Also, did they know the names of their own staff members -- and did they introduce us to each other? When a trip hazard was lying in wait on the floor, did they pick it up -- or merely avoid it?
In addition to asking about staffing ratios and open visiting hours, we wanted to know about how long each of the staff members we met had worked at the particular place. Finally, our whole family likes dogs and therefore it was a plus when we found a place that had a "house dog" that the residents clearly loved, but we recognize that not every place can handle the extra work it takes to maintain a pet on site.
A sad irony is that it is unlikely our mother will live in the same care setting that was so perfect for our father. That place is an assisted living center with four cottages, purpose built for Alzheimer's care, on a five acre setting. But it has become clear to us that even though Mom was the one who chose it for Dad, and it is a wonderful place, with people we still love, our mother probably doesn't want it for herself. In the last few months of our father's residence there before his death, she visited less and less often, and we came to realize she had "already" rejected it for herself. It wasn't about memories of Dad; rather, it was about what it meant to "also" have the same cognitive impairment. The director, who has become a good friend of mine, said that is not unusual -- that even successful residential settings are rarely chosen by families for second or third placements because the next loved one can be hypersensitive to the reality of that choice. Senior care living -- a tough business in which to generate repeat business.
January 16, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (1)
Monday, January 8, 2018
Over the holidays, unfortunately I had the experience of learning more about how older consumers struggle to understand what safe and effective treatments are available. In this instance, my mother, in her 90s, was experiencing overwhelming back pain. She has a long-history of osteoporosis (and it runs in the family on the female side, so my sister and I pay particular attention to this issue!) and in the last few weeks without any known "accident," she had begun to find it almost impossible to walk without pain. She's not the complaining type, and, having been raised by parents who were Christian Scientists, she tends to follow a "mind over matter" approach to this kind of problem. But, by Sunday last week, it was no longer possible to pretend she wasn't deeply uncomfortable.
We began another health care odyssey. Some of the steps we had already learned from past "holiday" experiences with my parents, including calling the "non-emergency" 911 number to get an experienced EMT evaluation of her status in the home, and, if necessary, a transport from her home to the emergency room. Then, recognizing that New Year's Eve is probably not the best night (if such a thing even exists) to spend in the local hospital's ER, we decided to go early in the morning.
Five hours after our arrival in the ER, we left with a new "LSO" back brace, instructions on how to use it, and prescriptions for a different walker and a new pain medication. On the latter point, we informed the ER physician of the fact Mom had not done well on narcotic pain relievers in the past ("why are those ants crawling on the walls") but we were told the drug prescribed was like a very strong Ibuprofen, but in a formulation that would not interact with the blood thinner she was on or her pacemaker.
We duly stopped at the pharmacy on the way home, and I signed my life away in order to pick up her prescription as she was unable to walk in to get it herself. When we got home, there were two documents in the bag with the prescription, including what I would call a typical "product insert" that looks like a page from the Physician's Desk Reference and a second sheet entitled "Directions for Use." The top of the instructions warned, "This is a narcotic drug and not recommended for the relief of pain in...." And then the list of disqualifying conditions included at least 3 of my mother's age-related conditions. Yikes!
My sister and I are not usually intimidated by product inserts, but here the instructions seemed directly at odds with our concerns about narcotics for mom. Everything we found on the internet only made us more confused and worried.
By this time it was late on New Year's Eve, her pain was increasing, and we knew we couldn't persuade her to go back to the ER and her primary care physician wasn't on call. The bottle said "every 6 hours." The ER physician had orally told us "every 6 to 8 hours," and finally we knew we had no choice -- her pain was real and we started using it at 12 hour intervals, gradually moving down to 8 hour intervals before she seemed to have real relief. It was another 5 days before her very kind primary care physician could squeeze us in for an appointment to have a more complete conversation -- and the good news is that we are now more comfortable about a longer range plan.
So on the heels of that multi-day experience, I was very interested in an article I spotted for my airplane trip home to Pennsylvania from Arizona. Phoenix Magazine had a detailed feature story in their January 2018 issue on "Pharma Chameleon," reporting on the arrest for fraud and racketeering charges of INSYS Therapeutics founder, a "billionaire executive" in Phoenix, well-known for his work on painkiller medicines. The history of this executive has nothing to do with my mother's pain relief medicine, but it was definitely a reminder that the pharmaceutical industry is deeply involved in pursuit of the "next" generation of painkillers. And, of course, this article contrasts with the recent news that a different drug company is dropping R & D for a dementia drug. Pain-killers are still "in," and dementia drugs apparently are "out."
So, I recommend the Phoenix Magazine article! I was particularly struck by this paragraph:
In November, Kapoor [the Phoenix-based INSYS executive arrested by the feds] pleaded not guilty to all charges and is currently awaiting trial, along with the six other former executives, who pleaded not guilty last January. All have severed ties with INSYS, which continues to do business. In July, it received FDA approval for a new drug, Syndros, a synthetic form of THC, the psychoactive component found in cannabis, to treat chemotherapy-induced nausea and loss of appetite in AIDS patients. As it did with Subsys, the company is looking into ways to manufacture the drug as a sublingual spray. Under Kapoor, the company donated $500,000 to the effort to defeat the measure to legalize marijuana for recreational use on Arizona’s 2016 general election ballot, paving the way for the synthetic substitute.
January 8, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Sunday, January 7, 2018
According to the Wall Street Journal, Pfizer Inc released a public statement on Saturday, January 6, 2018, announcing the end of R & D for new drugs for treatment of Alzheimer's Disease and Parkinson's Disease. The announcement reflected cost of efforts and the lack of success, and apparently the decision will mean layoffs for some 300 employees "over several months."
The Wall Street Journal also provided context for the disheartening decision:
Like several peers, Pfizer has invested heavily in developing treatments for Alzheimer’s and Parkinson’s because of the huge need. About 5.5 million Americans have Alzheimer’s, and the numbers are expected to rise as the population ages. Analysts say successful treatments for the memory-robbing disease could have multibillion-dollar sales potential.
But promising compound have repeatedly failed to work during testing.
The most recent disappointment took place last year, when a closely watched study of a treatment from Axovant Sciences Inc. called intepirdine failed to improve memory and learning in Alzheimer’s patients.
Companies that are still looking at possible Alzheimer's treatments include AstraZeneca, Biogen Inc, and Eli Lilly & Co., according to the WSJ article.
Thursday, December 28, 2017
A German nursing home is turning back the hands of time in an effort to better treat residents with dementia. The Washington Post story, A German nursing home tries a novel form of dementia therapy: re-creating a vanished era for its patients, explains how rather than trying to help residents remember, the facility takes them back to a specific period of time when they were younger. For example one "nursing home ... is trying to trigger [resident] ... memories by re-creating settings from [a prior] era as a form of therapy. While other nursing homes are also trying to help their residents remember details of their lives, what is going on here could well be the only concerted effort to re-create for its residents an entire historical era." This includes providing residents with tools they used in their jobs-but this only works if they liked their jobs, according to the article. Items are placed in "a memory room" for residents to visit. The staff had to become knowledgeable about the time period in order to appear as an authentic residents of the era. So far the facility focuses on two decades with plans to expand to encompass a third decade.
Thanks to my colleague, Professor Mark Bauer, for alerting me to the article.
Friday, December 22, 2017
For those of you from Florida, The Florida Supreme Court’s Guardianship Workgroup and Florida’s Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) will be holding a public hearing on Thursday, February 1, 2018 at the Orange County Courthouse from 4-7 p.m. The courthouse address is 425 North Orange Avenue, and the hearing will take place in Suite 180. According to the announcement
Members of the public will be able to share their concerns about guardianship and to identify possible solutions for those concerns. This event will help the Guardianship Workgroup and Florida’s WINGS advance guardianship reforms and increase the effectiveness of Florida’s guardianship systems.... Speakers are asked to address one of two questions:  If you could make one change in Florida’s guardianship system, what would it be? OR ...  How can courts improve their processes to better ensure protection of the person, property, and rights of individuals who are under guardianship or who need assistance making decisions? Comments should be succinct. A time limit will be imposed.
There are other ways to make your voice heard. Another public input event will take place in February in Central Florida. Comments may also be submitted through the WINGS website: https://flwings.flcourts.org/.
December 22, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, December 13, 2017
Are games and food supplements that promise to stave off the onset of dementia the modern day version of "snake oil?" I promised to write more about the Aging Brain Conference at Arizona State University's Sandra Day O'Connor College of Law on December 8, 2017. Speaker Dr. Cynthia Stonnington, Mayo Clinic, offered an important look at ways in which law, ethics, medicine, and commerce can collide with her survey of a host of approaches receiving "popular" press treatment.
She examined self-described "brain-training" programs, miracle diets, supplements and targeted exercise programs, noting that most studies that purport to demonstrate positive results from these items have serious flaws. Thus, at best, programs that claim to provide "protection" against dementia are usually promising more than has been proven. Dr. Stonnington, along with the morning keynote speaker, former U.S. Surgeon General Richard Carmona, reminded us that
- maintaining social engagement,
- engaging in lifelong learning,
- getting regular exercise of any type,
- having good blood pressure control,
- getting adequate sleep, and
- focusing on good nutrition (including eating plans such as the Mediterranean, DASH or MIND diets)
are far more important than any single, magic game or exercise.
One of the most lively discussions of the day came near the end, in response to presentations by Dr. Patrica Mayer of Banner Health in Phoenix, Amy McLean of Hospice of the Valley. and Life Sciences Professor Jason Robert (ASU) speaking for himself and Susan Fitzpatrick (James S. McDonnell Foundation), about end-of-life considerations for persons with dementia or other serious illnesses. What would be the most likely response of a physician or emergency personnel confronted with a "do not resuscitate" tattoo on the chest of an emergency patient? Dr. Mayer stressed that she is seeking reliable methods of communicating end-of-life wishes, and for her that means a preference for a written, Medical Power of Attorney. She wants that "live" interaction whenever possible, in order to fully explore the options for care for individuals unable to communicate for themselves. But she also noted a frequent frustration when she contacts designated POAs about the need to make tough decisions, only to learn they were completely unaware before that moment of having been named as the designated agent.
I was part of a panel of court-connected speakers, including Arizona Superior Court Judge Jay Polk (Maricopa County), neuropsychologist (and frequent expert witness) Elizabeth Leonard, and experienced Phoenix attorney Charles Arnold. I was interested to hear about -- and will pursue more information on -- the psychologists' use of evaluative tools for clients that use scenarios that would appear to test not just for loss of memory, but impaired judgment. I was speaking on the unfortunate need for judicial inquiries into "improvident transactions" by persons with problematic cognition and I used litigation approaches from other locations -- Ireland (common law) and Maine (statutory) -- as examples. The Arizona legal experts reminded me to take a closer look at Arizona's financial exploitation laws.
For more from this conference, see Learning to Say the Word "Die" -- about a pilot program developed by Dr. Mayer while she was an advanced bioethics fellow at the Cleveland Clinic. I also recommend Dr. Mayer's article on CPR & Hospice: Incompatible Goals, Irreconcilable Differences,
December 13, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Games, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, Science, Statistics | Permalink | Comments (0)
Tuesday, December 12, 2017
The "Aging Brain" Conference hosted by Arizona State University's Sandra Day O'Connor College of Law held on December 8, 2017 at the Sandra Day O'Connor United States Courthouse in Phoenix (that's a double helping of Sandra!) proved to be a fascinating, deep dive into the intersection of medicine, ethics and law with a focus on neurocognitive diseases, including Alzheimer's Disease. The panelists and audience included academics in a wide range of fields, plus practitioners in medicine, law, social services, and more, along with both state and federal judges. United States District Judge Roslyn Silver is a long-time supporter of law and science programming with ASU.
One of the important themes that emerged for me was the growing significance of pre-symptomatic tests that can disclose genetic markers associated with greater incidence of an eventual, active form of a degenerative brain disease. Neurologist Richard Caselli from Mayo Clinic and Jessica Langbaum, principal scientist with Banner Alzheimer's Institute laid out the latest information on a variety of genetic testing options, including the possibly mixed results for "risk" connected to positive results for specific genetic markers. A provocative question by a morning speaker, Law and Biosciences Professor Henry T. Greely at Stanford, captured the personal dilemma well, when he asked the audience to vote on how many would want to to know the results of a genetic test that could disclose such a connection, especially as there is, as yet, no known cure or even any clear way to prevent most neurocognitive diseases from taking hold.
Taking that a step further, how many of us would want our employer to know about that genetic marker results? How about our health insurers? As we discussed at the conference, some consumer information is already available through "popular" ancestry testing sites such as "23 and Me," which expressly offers testing for "genetic health risks," including "late-onset Alzheimer's Disease and Parkinson's Disease." Arizona State Law Professor Betsy Gray, director of the Law & Neuroscience Program for ASU's Center for Law, Science and Innovation, who master-minded the conference, helped to identify a host of legal and ethical issues connected to this developing world of science and medicine. Jalayne J. Arias, a full-time researcher at University of California San Francisco's Neurology, Memory and Aging Center (and clearly a rising academic star and graduate of ASU Law) outlined the implications of pre-symptomatic testing from the perspective of long-term care insurance. For more from Professor Arias, I recommend her 2015 paper for the Journal of Clinical Ethics on Stakeholders' Perspectives on Preclinical Testing for Alzheimer's Disease.
I plan to write more about this conference, as many perspectives on legal, ethical and medical questions were offered.
Wednesday, December 6, 2017
On December 8, 2017, I'm excited to be participating in a conference on The Aging Brain: Legal, Policy & Ethical Perspectives, in Phoenix, Arizona. This program is a follow-up to an interdisciplinary workshop hosted at Arizona State University's Sandra Day O'Connor School of Law in the fall of 2016. This year's presentations will take place at the the United States Courthouse in Phoenix.
The planned schedule is jam-packed with speakers I'm looking forward to hearing, including:
Welcome: Betsy Grey, Sandra Day O’Connor College of Law, ASU
Introduction: Dean Douglas Sylvester, Sandra Day O’Connor College of Law, ASU
Keynote Speaker:Richard H. Carmona, M.D., M.P.H., FACS, 17th Surgeon General of the United States, Chief of Health Innovations, Canyon Ranch, Distinguished Professor, University of Arizona
Scientific Developments in Aging and Dementia: Pre-Symptomatic Screening for Neurodegenerative Diseases
Panel Chair: Hon. Roslyn O. Silver, U.S. District Court for the District of Arizona
- Dr. Richard Caselli, Mayo Clinic
- Dr. Jessica Langbaum, Banner Alzheimer's Institute
- Dr. Cynthia M. Stonnington, Mayo C;inic
- Jalayne J. Arias, UCSF Neurology, Memory and Aging Center
- Henry T. Greely, Stanford Law School
Aging at Home
Panel Chair: Larry J. Cohen, The Cohen Law Firm
- David Coon, College of Nursing & Health Solutions, ASU
- Kent Dicks, Life365, Inc.
Panel Chair: Charles L. Arnold, Frazer Ryan Goldberg & Arnold, LLP
- Hon. Jay M. Polk, Probate Dep’t. Associate Presiding Judge, Superior Court of Arizona for Maricopa County
- Katherine Pearson, Dickinson School of Law, Pennsylvania State University
- Dr. Elizabeth Leonard, Neurocognitive Associates
- Betsy Grey, Sandra Day O’Connor College of Law, ASU
End of Life
Panel Chair: Dr. Mitzi Krockover, Health Futures Council at ASU
- Jason Robert, Lincoln Center for Applied Ethics, ASU
- Amy McLean, Hospice of the Valley
- Dr. Patricia A. Mayer, Banner Baywood & Banner Health Hospitals
Dr. Susan Fitzpatrick, President, James S. McDonnell Foundation
Introduction by Jason Robert, Lincoln Center for Applied Ethics, ASU
December 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0)
Thursday, November 30, 2017
Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.
I've also been hearing about more attempts to evict residents from Continuing Care Communities, also known as CCRCs or Life Plan Communities. For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC. The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years. When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue. Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.
Is there a trend? Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision? If the answer is "yes," then there is a tension here, between client expectations and marketing by providers. Such tension is unlikely to be good news for either side.
CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.
The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain. Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.
In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased. A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering." All of that indicates dementia care is part of the "continuing" plan.
CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care. Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing. Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.
November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Sunday, November 26, 2017
The Canadian Centre for Elder Law (CCEL) released a new report, Report On Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence And Diminished Mental Capacity, which can be downloaded as a pdf here. The report was a joint project between CCEL and FAIR (Canadian Foundation for Advancement of Investor Rights). Here is the executive summary of the report
Canadian investment firms and their financial services representatives1 (hereinafter referred to as "financial services representatives" or simply "representatives") serve millions of vulnerable investors, many of whom are older Canadians. Vulnerable investors may be persons living in isolated, abusive or neglectful situations which can make them more likely to be subject to undue influence. They also may be persons with diminished mental capacity due to health issues, developmental disability, brain injury or other cognitive impairment. Such social vulnerabilities may be episodic, or long-term.2
Who is a Vulnerable Investor?
Older investors, persons with fluctuating or diminished mental capacity, and adults who are subject to undue influence or financial exploitation are collectively referred to in this report as vulnerable investors. This concept of vulnerability is often a contentious one. This report uses the term "vulnerable" to refer to social vulnerability, and does not ascribe vulnerability to older persons as an inherent personal characteristic.3 Rather, the term reflects an understanding that differing social conditions may make a person more or less vulnerable. Individual older investors may personally not be socially vulnerable. But as a group, older individuals may be subject to external conditions—such as ageism—that negatively affect them. This report specifically notes that ageism can make older people broadly vulnerable as a class, even while individual older adults may not be, or identify, as particularly vulnerable themselves.
This report adopts the core aspects of the Quebec definition of vulnerable investor. A vulnerable investor is a person who is in a vulnerable situation, who is of the age of majority, and lacks an ability to request or obtain assistance, either temporarily or permanently, due to one or more factors such as a physical, cognitive or psychological limitation, illness, injury or handicap.
It is important, and a goal of this report, to highlight the increased social vulnerability risks associated with aging and to raise awareness that aging life-course benchmarks may trigger a representative to start ensuring that increased appropriate protections or standards are in place. In this way, the issue of older investors will be drawn to the fore, without supporting the myth that all old people are vulnerable and in need of protection.
Actions by Attorneys and Their Investigators Trigger Sanctions Affecting the Underlying False Claims Act Suit
A decision earlier this year in a qui tam suit, alleging the submission of false claims to Medicare for the off-label prescription of a drug for dementia, seems especially interesting in light of recent high profile allegations involving Harvey Weinstein's alleged use of private investigators to befriend his victims in order gather information.
In the qui tam suit the drug in question was Namenda, described in the opinion as "approved by the FDA for treatment of moderate to severe Alzheimer's disease," but allegedly also promoted illegally by the companies for prescription to individuals with milder stages of dementia. In Leysock v. Forest Laboratories, et al, the United States District Court in Massachusetts dismissed the complaint as a sanction for conduct by the plaintiff's attorneys and the investigator hired by those attorneys:
The present dispute arises out of the conduct of counsel for relator, the Milberg law firm, in investigating the case. As set forth below, Milberg attorneys engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices, and in some instances about their patients. In essence, Milberg retained a physician and medical researcher, Dr. Mark Godec, to conduct a survey of physicians concerning their prescription of Namenda to Medicare patients. In order to obtain the cooperation of the physicians, Dr. Godec falsely represented that he was conducting a medical research study. Dr. Godec, at Milberg's direction, conducted two internet-based surveys as well as follow-up telephone interviews. Among other things, the physicians were induced to provide patient medical charts and other confidential medical information to Dr. Godec. Information derived from those surveys was then set out in the Second Amended Complaint in this action, and was relied on by the Court in denying defendant's motion to dismiss in 2014.
Defendants have now moved to dismiss the Second Amended Complaint as a sanction for alleged violations of attorney ethical rules. For the reasons stated below, that motion will be granted.
November 26, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)
Wednesday, November 22, 2017
One of the many things that I am thankful for is the assistance of kind and patient individuals who have helped my mother and father for more than five years, as age-related issues make my parents' lives more challenging. On the top of my list is my sister -- who is a constant, loving presence -- and who makes it all possible. She tolerates my jet-fueled attempts to help on my drop-in visits to Arizona from Pennsylvania.
Our father was at home with progressing dementia for more than two years before it became necessary to find a dementia-care living center that could provide a safer setting. For most of that time, we had 24/7 assistance in the home -- and we still have help now for our mother at home.
But, it just become too hard for Dad at home, especially as the multilevel, 90-year old house was full of traps for his unsteady steps. Mom participated in the search for a better setting. When the time came, she made the ultimate decision about where and when. While the transition was anything but easy, with every passing day we knew more clearly it was the right decision.
On good days, Dad would declare to anyone who was passing, "this is a very good place." He was usually sitting on his favorite bench in the center courtyard, holding "court" with everyone who walked by on the five acre campus. (On a bad day, he might ask rather insistently for a cigarette, something he hadn't done in 50 years!).
My sister and I came to revel in the holiday parties organized by the caring staff. We knew the parties would be festive, with great food and often with music and dancing, and that extended families would join together. One holiday, another visiting son who looked about my age, asked my name and it turned out we had attended high school together, not far down the road. A modern way to hold a "high school reunion," right?
Dad's center was entirely devoted to residents with dementia, with or without additional physical disabilities. Once a resident was admitted, and as long as they did not need certain types of skilled medical care (such as IVs), the Center could be their home until the last days. I'm still in touch with members of the staff who helped my Dad, and I think of all of them with fondness and gratefulness.
Each year we celebrated a traditional Thanksgiving meal at Dad's center (usually a few days before the actual holiday) as a big group. On Dad's last Thanksgiving, in 2016, families gathered on the covered porches of each of the four cottages in the community. It was a typically warm -- but also an atypically rainy -- November day in Phoenix.
A key to the success at Dad's center is a setting that facilitates behavioral approaches to dementia care, rather than drugs or restraints. The 48 residents -- 12 per cottage -- have free run of the secure campus, and in Dad's case he used every inch. His walking grew stronger in the early days after his admission (even with his "bad" knee), while the agitation and anger he had while at home eased significantly. For the first time in more than a decade, his blood pressure stabilized and we soon realized even his hearing and vision improved.
Dad was at the center just a week shy of three years, passing at age 91. Of course, after the initial improvement in strength with his regular walking, his fragility over the years increased slowly, but he was still out and about until his last two weeks. Two of his former judicial law clerks visited Dad close to Thanksgiving last year. Such kindness from everyone.
I commented near the end of Dad's time at the center, while chatting with the Director, that perhaps some of the residents might enjoy having more "reasons" to walk. I suggested the possibility of a mail box, where residents could collect or deliver cards and letters, both real and "created" especially for the holiday.
This is a community that welcomes suggestions -- and doesn't ignore them -- and thus I was pleased but not really surprised to get an email this week from the Director. Dad passed away some 10 months ago, but the staff nonetheless took action -- installing an old-fashioned mailbox outside each cottage, with decorations to help residents identify their home spot. I hear deliveries are made regularly -- even on holidays! I like to think how much Dad would have enjoyed being part of the postal delivery.
My thanks to everyone who is part of a care-giving team. You mean so much to all of us. Happy Thanksgiving to all of you and your families!
Friday, November 17, 2017
The issue of "evictions" in residential facilities for older adults has long been on my radar screen, and I was especially interested to hear (and read) news of a lawsuit initiated by the AARP Foundation Litigation (AFL) against a California skilled nursing facility and its parent entity following the facility's refusal to "readmit" an 82 year-old resident following her temporary hospital stay. As reported by NPR for All Things Considered on November 13, 2017:
[The Defendants] say that she became aggressive with staff and threw some plastic tableware. So Pioneer House called an ambulance and sent her to a hospital for a psychological evaluation. The hospital found nothing wrong with her, but the nursing home wouldn't take her back. They said they couldn't care for someone with her needs. Jones protested his mother's eviction to the California Department of Health Care Services. The department held a hearing. Jones won.
"I expected action — definitely expected action," says Jones. Instead, he got an email explaining that the department that holds the hearings has no authority to enforce its own rulings. Enforcement is handled by a different state agency. He could start over with them.
This Catch-22 situation attracted the interest of the legal wing of the AARP Foundation. Last year, attorneys there asked the federal government to open a civil rights investigation into the way California deals with nursing home evictions. Now, they're suing Pioneer House and its parent company on Gloria Single's behalf. It's the first time the AARP has taken a legal case dealing with nursing home eviction.
For more, read AARP Foundation Sues Nursing Home to Stop Illegal Evictions.
My thanks to my always alert colleague, Dickinson Law Professor Laurel Terry, for sharing this item.
November 17, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, November 15, 2017
Shortages of Specialists to Screen and Diagnose Early Stages of Neurocognitive Diseases Are Part of the Looming Problem
A recent study by the Rand Corporation points to related problems with diagnosis AND treatment of Alzheimer's Disease and other neurocognitive disorders. Even as there is a growing need for effective treatment, there are "too few medical specialists to diagnose patients who may have early signs of Alzheimer's" and thus become eligible for therapies that might slow or or halt progression of such diseases. From the Rand news release:
“While significant effort is being put into developing treatments to slow or block the progression of Alzheimer's dementia, little work has been done to get the medical system ready for such an advancement,” said Jodi Liu, lead author of the study and a policy researcher at RAND, a nonprofit research organization. “While there is no certainty an Alzheimer's therapy will be approved soon, our work suggests that health care leaders should begin thinking about how to respond to such a breakthrough.”
An estimated 5.5 million Americans live with Alzheimer's dementia today, with the number projected to increase to 11.6 million by 2040.
Advanced clinical trials are underway for at least 10 investigational therapies that have shown promise in slowing or blocking development of Alzheimer's disease. Researchers say the progress provides guarded optimism that a disease-modifying therapy could become available for routine use within a few years.
Liu and her team examined the pathway patients would likely take to receive an Alzheimer's therapy and created a model to simulate the pressures that such an approved therapy would put on the health care system.
The analysis assumes that a therapy is approved for use beginning in 2020 and screening would begin in 2019, although researchers stress that the date was chosen only as a scenario for the model, not as a prediction of when a therapy may be approved.
Under such a scenario, about 71 million Americans aged 55 and older would have to be screened for signs of mild cognitive impairment. After follow-up examinations and imaging to confirm evidence of Alzheimer's, the RAND analysis estimates 2.4 million people ultimately could be recommended for treatment.
For additional analysis, see The Washington Post's article from its Business Section, We're So Unprepared for Finding An Alzheimer's Treatment.
Special thanks to George Washington Law Professor (and friend) Naomi Cahn for making sure we did not miss this item.
Tuesday, October 31, 2017
On Monday I did a presentation in New Orleans for a conference sponsored by a professional liability insurance organization. My topic was "legal implications of a diagnosis of dementia" as a risk management concern and part of my task was to talk about alternative diagnoses of neurocognitive disorders, especially for clients.
In part, my message was a note of caution. Lack of "short term memory" may not be present, and thus attorneys, families and colleagues may not have this early warning sign of cognitive disease. For example, a frontal lobe disorder can be "early" onset (usually meaning onset before the individual reaches the age of 60). Language or short term memory problems may not be noticeably impaired, while higher executive functions, especially judgment, can be seriously impacted. Changes in personality, loss of inhibition (including sexual inhibition), recklessness with money or investments may be signs, but these changes may be mistaken for "a mid-career crisis," or other personality problems unrelated to disease.
The lawyer who invited me to do this program with him, Mark Tuft from California, has long experience and knowledge of ethical and disciplinary standards for attorneys. On a related point, he pointed me to a recent Washington Post article, where an individual had been living for two decades with a "fatal" diagnosis of early onset "Alzheimer's Disease," which, as it turns out, may not have been accurate. The author writes in his essay:
Two neurologists have stated [recently] that I fall into a fairly new category called suspected non-Alzheimer’s pathophysiology, or SNAP. According to one study, about 23 percent of clinically normal people ages 65 and older and about 25 percent of people with MCI[Mild Cognitive Impairment] have SNAP. For people with both MCI and SNAP, the risk of cognitive decline and dementia is higher than for clinically normal people with SNAP.
I was initially diagnosed with MCI. But for the past 10 years, the diagnosis has been Alzheimer’s. It is still officially the diagnosis because information gained in trials — which is how I found out that my amyloid scan was negative and that I probably did not have Alzheimer’s — does not go on a medical record. . . .
I will have to wait for science to catch up before I know for sure. Who knows, I may even be part of the next new term. I just hope it means that what I have will not be progressive and lead to death. The one thing we all should learn from my experience is to take advantage of all the tools we have access to so we can make the best decision possible.
What is next for this individual? He received the latest news with mixture of relief and confusion. Read "I lived with an Alzheimer’s diagnosis for years. But a recent test says I may not have it after all," by .
Thanks, Mark, for sharing your podium in New Orleans with me on Monday and for pointing all of us to this article, which is another reminder of the rapidly changing world of scientific knowledge about cognitive impairments.
Thursday, October 26, 2017
The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.
As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.
The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including:
- Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
- Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
- Establish stringent reporting and financial accountability measures for conservators, including the following:
1. require conservators, upon appointment, to sign releases permitting the courts
to obtain financial documents of protected persons;
2. require annual reports to include bank and financial statements and any other
documentation requested by the court auditor, with appropriate protections
to prevent disclosure of confidential information;
3. require conservators to maintain a separate trust account for each protected
person to avoid commingling of funds; and
4. require conservators to maintain financial records for seven years.
The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."
Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.
The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study. The deadline for the comments is November 8, 2017.
My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R. Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!
October 26, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, October 25, 2017
The ABA Journal ran an article as part of their daily news about some of the cases regarding guardians and questionable acts. Cases raise questions about adult guardianship and lawyer-hospital relationships focuses on cases in Michigan and South Carolina. "Cases in Michigan and South Carolina are raising questions about lawyers who receive guardianship appointments as a result of their relationships with hospitals." The story explains that in the Michigan case, the judge noted an agreement between the attorney and the hospital regarding filing petitions concerning certain patients as well as compensation from a third party (hospital). The South Carolina case involved supposed conflicts of interest, according to the story, when a hospital attorney served as guardian. In addition to discussing the two cases in more depth, the article goes on to discuss the New Yorker article about guardianships in Nevada (see earlier blog posts) and reform activities there.
Monday, October 23, 2017
My thanks to my colleague Dermot Groome for pointing me to the CNN investigative series on "The Little Red Pill Being Pushed on the Elderly." The prescription drug in questions is Nuedexta, approved to treat PseudoBulbar Affect or PBA, a "disorder marked by sudden and uncontrollable laughing or crying." (Perhaps you have seen commercials for treatment of PBA with actor Danny Glover effectively portraying the disorder).
According to the CNN report:
Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. Total sales of Nuedexta reached almost $300 million that year.
Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less. And state regulators have found doctors inappropriately diagnosing nursing home residents with PBA to justify using Nuedexta to treat patients whose confusion, agitation and unruly behavior make them difficult to manage."There has to be a diagnosis for every drug prescribed, and that diagnosis has to be real ... it cannot be simply made up by a doctor," said Kathryn Locatell, a geriatric physician who helps the California Department of Justice investigate cases of elder abuse in nursing homes. "There is little to no medical literature to support the drug's use in nursing home residents (with dementia) -- the population apparently being targeted."
Wednesday, October 18, 2017
You may have read recently about a woman who had an advance directive that addressed artificial nutrition and hydration. The SNF where she lived was hand feeding her, over her husband's objections. The trial court sided with the SNF and the state ombudsman who had argued that "state rules to prevent abuse required the center to offer residents three meals each day and provide help eating, if needed." Can one provide in her advance directive that she refuses in advance oral fluids and foods at some point in the future? The Kaiser Health News article, Dementia Patient At Center of Spoon-Feeding Controversy Dies, explores the specific case as well as the issue. The patient, as the title explained, died last week.
Here's the issue illustrated in this matter.
At issue is whether patients with Alzheimer’s and other progressive diseases can stipulate in advance that they want oral food and liquid stopped at a certain point, hastening death through dehydration. It’s a controversial form of what’s known as VSED — voluntarily stopping eating and drinking — a small but growing practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, usually resulting in death within two weeks. .... “The right to VSED is reasonably well-established, but it’s when a person isn’t competent that’s the issue,” said Paul T. Menzel, a retired bioethicist at Pacific Lutheran University in Tacoma, Wash., who has written extensively on the topic.
So in thinking about a person saying no to food and fluids, "VSED doesn’t require a law or a doctor’s approval. But the question of whether it’s possible for people who can no longer actively consent to the procedure remains ethically and legally unclear. That’s especially true for patients who open their mouths to accept food and fluids...."
Have you looked at your state's laws to see if there is a position on this? According to the article, almost 24 states have laws on "assisted feeding" some of which "specifically prohibit withdrawing oral food and fluids. Other states address only artificial feeding or are unclear or silent on the issue [and] ... Idaho — appears to sanction withdrawal of assisted feeding by a health care proxy" according to an expert quoted in the article. However, "Idaho state law also prohibits any form of assisted suicide and requires “comfort care” for patients if artificial nutrition and hydration is withdrawn. It’s not clear whether a request to halt assisted feeding would be honored" said an expert on Idaho's statute on Medical Consent and Natural Death Act.
October 18, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Wednesday, October 4, 2017
New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships
The New Yorker Magazine offers "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.
In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”
There are fundamental issues at the heart of this kind of history. Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself. But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.
My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly.
October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)