Sunday, November 26, 2017

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.

Continue reading

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

Thanks Giving For Caregivers

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.  


Dad's Bench (2)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?My sister joins the dancing

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.  November 2016

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.  

Active Living with DementiaThis 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! 

November 22, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing | Permalink | Comments (1)

Friday, November 17, 2017

"Evictions" of Nursing Home Residents Trigger Lawsuits

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.  

November 15, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0)

Tuesday, October 31, 2017

What Happens When the Diagnosis of "Alzheimer's" Isn't the Correct Diagnosis?

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. 

October 31, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Science | Permalink | Comments (0)

Thursday, October 26, 2017

NM Commission Submits Initial Recommendations for Improving State's Guardianship System

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

More on Guardianships

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.

October 25, 2017 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 23, 2017

The Latest in Off-Label Prescriptions for Dementia Patients: "The Little Red Pill"

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.
 
Concerns about unnecessary prescription, side effects (including a higher incidence of falls), and federal reimbursements for cost are raised by critics:
 
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."
The article notes that Medicare pays for much of the use of this drug in the nursing home setting, and as we've been reported before on other off label prescriptions of  medications, federal regulators have the power to investigate and sanction improper use (not just off-label use) under the False Claims Act and similar anti-fraud regulations.  

October 23, 2017 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Medicare, Science, Statistics | Permalink | Comments (0)

Wednesday, October 18, 2017

Voluntary Stopping Eating & Drinking (VSED) When Capacity Lacking?

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

We've posted often on the Elder Law Prof Blog about problems with guardianships for older adults, highlighting reports from Nevada, Florida and Arizona, for example.

The New Yorker Magazine offers  "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:

Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights. 

Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.  

In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”

There are fundamental issues at the heart of this kind of history.  Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself.  But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.     

My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly. 

October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 2, 2017

"Probable Cause" Prevents Son-in-Law/Agent from Suing for Malicious Prosecution in Elder Fraud Case

The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds.  It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."  

Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners.  A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law.  The mother-in-law later challenged the transaction as contrary to her understanding and intention.

Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts.  They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.  

As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.

Not so fast.  Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process. 

Continue reading

October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, October 1, 2017

The Black, White & Gray of Consent to Sexual Relations in Long-Term Care

Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's  decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017.  Not a violent contact and apparently not one involving physical or mental injury.  But clothing was removed and fluids were later documented.  Now residents are being transferred and more than 70 employees will reportedly be laid off. 

As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities.   A criminal investigation found no grounds for prosecution.  A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports.  The actual closure action was made voluntarily by Genesis.

Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:

  • Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"? 
  • How far must a LTC provider go to prevent intimate contact between residents?
  • After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
  • How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?  
  • Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?

Continue reading

October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 26, 2017

Rental Housing and Seniors -- the Live-In Care-Giver Problem?

Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment.  The landlord was fully aware of the situation.  Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time.  However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.  

What's the problem?  When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her.  Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.

Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease.  In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment.  The landlord didn't want a "demanding" resident!

The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.  

I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care. 

 

September 26, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Thursday, September 21, 2017

The "Well-Meaning Friday Child" Syndrome and Long-Distance Caregiving


St._Nicholas_(serial)_(1873)_(14596944999)There's an old rhyme that's been running through my head lately, the one about Monday's child (who was fair of face) and so on.  In the rhyme, "Friday's child is loving and giving."

I like to think of myself as Friday's child, even as I confess I don't quite live up to the standard of being truly giving.  For example, I haven't changed jobs or given up my job to be a more direct caregiver for my parents. I'm the child who flies across the country on long-weekends to my parent's home town, and tries to demonstrate my loving and giving nature by fixing all of their problems.  I have the "well-meaning Friday child" syndrome.  And there are a lot of us out there; I'm often seated next to someone attempting this same care mission on red-eye airplane flights.

Mostly, this pattern tends to drive my folks and my sister, who lives about 30 minutes from my parents' home, a bit crazy.  I rationalize my behavior by telling myself, "They asked me to fix XYZ problem!" But doing so on the run is often a less-than-successful strategy.  When my father was alive and still at home, he used to respond to my arrival with an immediate question, "when are you leaving?"  I used to try to explain away that response by thinking, "he just wants to know so that he can get in an extra ride to the airport, one of his favorite outings."  But now my mom is asking me the same question and she doesn't enjoy airport rides.    

Over time, one of the things I've learned is that rather than trying to impose solutions, it's better to use these short trips to identify options.  For example, as it became clear (at least to me) that my father might not be able to stay at home for the rest of his life, even with round-the-clock assistance, I suggested to my mother that we make a long list of different types of care settings and visit one each time I was home.  Sometimes we even saw two spots.  Sometimes we made a second visit to a spot we'd looked at earlier. Eventually my mother, worn out and worn down by the care needs of her husband, called me and suggested it "was time" to select a spot, and she already knew which spot was the right one. That process took more than eight months of visits.  It meant my sister, my mom and I needed to be on the same team for this big change.

The spot Mom chose -- one of the first on our visit list -- wasn't the fanciest, but it proved to be perfect for Dad.  The first few weeks were rough on everyone, but Dad did settle in and sometimes, out of the blue, he would say, "This is a wonderful place, isn't it?" For him it was actually a better place because he had five safe acres of freedom to roam, rather than being trapped in a multi-storied house that made movement much more dangerous and him more anxious. He calmed down, my mom calmed down, my sister got some breathing space, and I relaxed a bit on those still-frequent weekend visits.

Elder Law attorneys know all about the well-meaning child, and they tend to keep the decks clear on Fridays for the meetings with "out-of-town" children, often with one or both parents in tow.  The experienced attorney knows how to find the balance between "rush" and "enough time," in order to help families make the best decisions for the future.    

September 21, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Housing | Permalink | Comments (0)

Monday, September 18, 2017

Doctors in Older Age: Should They Be Evaluated on Their Fitness?

I've heard a few times about concerns regarding doctors in their 70s and 80s who continue to practice medicine. The implication is that their age might somehow make them less fit to practice medicine. I've also heard the same concerns expressed about attorneys. Do we concern ourselves with professional fitness just based on age for any other profession? Not for us law profs.  So I was interested in reading this article from the Philadelphia Inquirer, More doctors are practicing past age 70. Is that safe for patients? 

The article opens with the story of one pediatrician who at 76, was required by his hospital to be evaluated. This hospital "is among the growing number of hospitals that are reevaluating doctors simply because they are old. Their age puts them at higher risk for physical and cognitive changes that could imperil patients." Other doctors quoted in the article oppose such actions, arguing the lack of "scientific evidence correlating such test results with physician performance. They have, however, grudgingly accepted physical testing and peer review."  The article notes a trend of sorts on this issue

In 2015, the American Medical Association called for guidelines to evaluate aging doctors, although it did not specify what they should be.  It also said doctors have a “professional duty” to self-assess.  The American College of Surgeons last year said surgeons should voluntarily undergo testing by their personal physicians and  disclose any problems to their employers.

There are likely more older physicians still practicing then you might think. To some extent, the article notes, that taking action now internally is preemptive.   There's a two-day challenging testing program, "[t]he  Aging Surgeon Program, which is available to doctors from anywhere,  involves extensive cognitive and physical testing as well as evaluation of balance, reaction time, and fine motor skills."  Penn Medicine has implemented cognitive testing for all of their doctors who are 70 or older. The article looks at what other medical facilities in the area are doing. 

I suspect this is an issue we will hear more about in the future.

September 18, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Health Care/Long Term Care | Permalink | Comments (2)

Tuesday, September 5, 2017

A Portrait of the Dreaded "A" Disease

One of my first "real" jobs after college was working in Washington D.C. for a U.S. Senator who regularly attracted the attention of the press, including reporter Sally Quinn and her husband and executive editor Ben Bradlee at the Washington Post.  I found it especially poignant to read Sally's newly published account of her husband's last years.  She writes with great candor about the small and large changes she observed, and the drama of good days and bad days "at the office," in a very public place. Here's an excerpt:

In 2011, a reporter called Ben at the Post, where he maintained an office as a vice president at large, to interview him about something sensitive that had happened at the paper. Ben was very forthcoming — in fact, too forthcoming. He told the reporter much more than he should have, much more than he knew. After the piece came out, I went to Washington Post Company Chairman Don Graham and suggested that it might be time for Ben to stop going to the Post. Don, the kindest human being on the planet, refused to even consider it. However, we did work out a plan. All the secretaries and assistants on the floor were advised never to put a call through to Ben without checking with his secretary Carol or Don or me. Everyone was told to turn down all interview requests. Ben never knew about it.

 

It had been five years since he had been diagnosed with early-stage dementia, but few outside the family knew it. Almost every day he went down to the Post cafeteria for lunch and would be immediately surrounded by a coterie of reporters and admirers, and that seemed to perk him up. There was always a group conversation and as long as Ben gave somebody the finger or told somebody to “f--- off,” people didn’t seem to notice the forgetfulness that much.

 

I organized a lunch group at the Madison hotel across from the Post, where I had a running tab. Carol had a sign-up sheet and up to five people could join. It was always full. We called it “Tuesdays with Ben.”

Eventually it became too much to hide Ben Bradlee's diagnosis from friends and work associates:

The A-word is a killer, which is why I always said “dementia,” even though it was never clear which [type] he had. Somehow Alzheimer’s sounds like something one could catch. Dementia sounds tamer, more like gentle aging. At dinners, I would ask my friends to seat me next to Ben so that I could protect him. I’d make sure the person on his other side was aware of Ben’s situation.

The full piece, which is an excerpt from Sally's forthcoming book, Finding Magic: A Spiritual Memoir, is carried in this week's Washington Post and is well worth reading.  It is a complex portrait of a hard-driving man and his loving wife and friends

September 5, 2017 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Thursday, August 31, 2017

The Eyes Have It? A New Tool To Detect Alzheimer's?

USA Today ran a story, Can this eye scan detect Alzheimer's years in advance? This short article explains that according to scientists "early indicators of Alzheimer's disease exist within our eyes, meaning a non-invasive eye scan could tip us off to Alzheimer's years before symptoms occur... It turns out the disease affects the retina — the back of the eye — similarly to how it affects the brain, notes neuroscience investigators at Cedars-Sinai Medical Center in California. Through a high-definition eye scan, the researchers found they could see buildup of toxic proteins, which are indicative of Alzheimer's." The study on which this article is based was published in the Journal of Clinic Investigation.  Retinal amyloid pathology and proof-of-concept imaging trial in Alzheimer’s disease is downloadable as a pdf by clicking here. The 19 page article offers this intriguing statement. "Such retinal amyloid imaging technology, capable of detecting discrete deposits at high resolution in the CNS, may present a sensitive yet inexpensive tool for screening populations at risk for AD, assessing disease progression, and monitoring response to therapy." (Warning-there are a lot of detailed photos of eyes in this article).

 

August 31, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Science | Permalink | Comments (0)

Monday, August 28, 2017

Limits on the Right To Self-Determination (when you have dementia)

From Oregon, known for its "death with dignity" laws, the dilemma facing a couple who are learning the limits of the laws:  

Bill Harris is blunt: For more than a year, he has been trying to help his wife die.

 

The 75-year-old retired tech worker says it’s his duty to Nora Harris, his spouse of nearly four decades, who was diagnosed with early-onset Alzheimer’s disease in 2009.

 

“Let me be honest: Yes. It’s what she wanted,” he said. “I want her to pass. I want her to end her suffering.”

 

Nora Harris, 64, a former librarian, signed an advance directive after her diagnosis to prevent her life from being prolonged when her disease got worse. Now, her husband said, she’s being kept alive with assisted eating and drinking against her stated wishes.

For more of the story, read "Despite Advance Directive, Dementia Patient Denied Last Wish, Says Spouse." 

August 28, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 11, 2017

An Elevator Emergency System and the Death of an Elderly Man

Here is another tragic news story for a man, age 82, "who had begun showing signs of dementia and would become 'disoriented at times.'"  

On Aug. 2, nearly a month after he went missing, maintenance workers reported to fire authorities a discovery: a decomposed body in an elevator car in the parking garage. The body was soon identified as Komisarchik’s. . . .  

 

At some point on or before July 6, Komisarchik stepped inside the parking garage elevator. For reasons that remain unclear, he struggled to get out.

 

So in an attempt to seek help, Komisarchik pushed the elevator’s emergency button — twice over the course of eight minutes, a Denver Fire Department spokesman told the Denver Post. But no one responded.

 

Electronic records show that the elevator’s emergency alarm was pressed at 9:09 p.m. and 9:17 p.m. on July 6, the day after Komisarchik was last spotted, according to KUSA. Pushing this emergency button should trigger an alert to an elevator monitoring group or the fire department. But during the time Komisarchik was in the elevator, the fire department received no emergency calls from that car, the Denver Post reported.

 

“Something is not right,” Capt. Greg Pixley, a Denver Fire Department spokesman, told the Denver Post.

For more details, read "He pushed an elevator's alarm button but no one came. . . ." from the Washington Post

August 11, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Wednesday, August 9, 2017

Tragic Deaths of Long-Married Couple Underscore Family Dilemmas

The Washington Post carried a recent story by Samantha Schmidt on the tragedy that befell the Tarnowski family in Minnesota when Mary, age 78, and Ron, age 81, somehow wound up stranded with their car on a remote rural trail.  Sadly, they both perished, with heat and dehydration likely factors in their deaths.  

One element of the story has attracted a lot of reader attention -- the report that Ron Tarnowski, who had been his wife's primary caregiver for more than 35 years, was "showing signs of early-stage dementia" in recent years.   Implications from this label raise questions for many. 

From the article, a facebook page, and the obituary, it is apparent that the couple's two sons were very caring and attentive.  One son had built them a home "adjacent to his own so he could keep an eye on them."  That son's wife had given his mother a bath and cooked breakfast for the couple earlier on the day they went missing, and the fact that they were missing was reported the very same day.  Despite the sons' attentiveness, and the all-out efforts of authorities and volunteers to locate the missing couple, the search lasted eight days.

I read with interest the comments to the story posted on-line at the Washington Post website. I expected there would be "flamers" and shaming, so typical of many on-line comment websites. But for the most part, the readers showed kindness and empathy, especially as they told their own stories of struggles to balance protection with respect, attempting to preserve autonomy of beloved family members who are aging.  

Significantly, many readers addressed the potential for modern technology in the form of automated trackers on cars and cell phones to help avoid, if not completely prevent such a tragedy. 

August 9, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0)