Wednesday, June 15, 2016
We've blogged on a number of occasions about the "elder tech revolution" and the technology competency of elders. We're not the only ones watching this issue. In fact, the President's Council of Advisors on Science and Technology issued a report to the President in March of this year. Report to the President Independence, Technology and Connection in Older Age is a detailed look at various issues and technologies. The executive summary sets the stage
The U.S. population is getting older, and Americans are living longer, on average, than they ever have before. As they age, people are healthier and more active than the generations before them and have fewer functional limitations such as difficulty walking or blindness. Studies show that people are happier on average as they advance into their later decades and enjoy high levels of accumulated knowledge and experience.
Getting older is a time of social, emotional, mental, and physical change. Retirement might change how a person interacts socially every day, affecting a person’s mood and well-being. Cognitive aging—the normal process of cognitive change as a person gets older—can begin, or a permanent change in physical function may arise. Technology offers a path for people who are navigating these changes potentially to prevent or minimize the risks associated with them and to enhance people’s ability to live their lives fully. We, the President’s Council of Advisors on Science and Technology (PCAST), sought to identify technologies and policies that will maximize the independence, productivity, and engagement of Americans in their later years.
The Committee focused on 4 areas of aging: physical and cognitive changes, hearing loss and lack of social interaction. The report contains "cross-cutting recommendations" as well as area-specific recommendations. The cross-cutting recommendations include federal support and coordination, widespread internet access, adoption of monitoring technology, and encouraging research to develop more innovation. There are 12 area-specific recommendations.
The blog post about the report is available here.
Sunday, June 12, 2016
The 2016 award for best actor in a dramatic play was awarded to Frank Langella for his performance as a man with dementia in The Father, a play that began its life as French playwright Florian Zeller's Le Pére.
Another sign of our aging times.
Thursday, June 9, 2016
Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us. Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.
Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition. He writes:
In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.
Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.
Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:
Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).
On free speech implications, he writes:
The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.
And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:
State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.
The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.
June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 31, 2016
The annual American Society on Aging (ASA) conference is scheduled for March 20-24, 2017 in Chicago. The planning committee is now accepting proposals to present at the conference. For more information or to submit a proposal, click here. The deadline for submitting a proposal is June 30, 2017.
May 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)
Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.
Sunday, May 22, 2016
Two ABA commissions and two ABA sections have created the PRACTICAL supported decision-making tool for lawyers which "aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship." PRACTICAL is the acronym for the steps the lawyer takes to identify the options both during the interview with the client and after when considering the case. The tool is available both as a fillable pdf or a word document. There is also an accompanying resource guide in pdf.
Download your copy now!
Monday, May 16, 2016
Have you ever been surprised by a loved one who, even with Alzheimer's, will sing or recite poetry? If you've had that experience, you will probably be as intrigued as I was by the Alzheimer's Poetry Project. Here are the details.
Sunday, May 15, 2016
As reported in several financial news services, including McKnight's Long-Term Care News here, HCR ManorCare, owner/operator of a large number of skilled nursing and assisted living properties, is to be spun off by its corporate parent, HCP Inc., into the hands of "an independent real estate investment trust" called, appropriately enough, "SpinCo."
Certainly this seems to be a move to improve the financial position of HCP by separating the nursing home operations from independent living operations; it remains to be seen whether it also allows "troubled" HCR ManorCare to resolve concerns about quality of care and billing practices. The business history of ManorCare, with all of its various partners and name changes, probably serves as a marker for changes throughout the skilled care industry. For ManorCare's own perspective on its history, see "Our History Is Still Being Written."
Friday, May 13, 2016
Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?
My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients. This week the ABA Journal also linked to the AP story, plus tied the statistical reports of a nation-wide increase in complaints about evictions, rejections and discharges to one man's struggle to return to his California care center following what should have been short term hospitalization for pneumonia.
The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals. But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture. Anderson experienced a severe brain injury at age 55 following a heart attack, but his younger age, lack of "private pay resources," and a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.
The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources. Certainly there are many -- and probably too many -- individuals in facilities when they could be maintained at home if there was more funding to supplement family-based care.
At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care. It is about more than mere eviction, discharge and rejection statistics. The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities. But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.
My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.
Sunday, May 8, 2016
The New York Times recently ran an in-depth article about Alzheimer's impact on one woman. Fraying at the Edges covers the journey of Geri Taylor, who at the beginning stages of Alzheimer's is described as in the "waiting period" of Alzheimer's. This 12 page article is an incredible personal look at one person's life with Alzheimer's. The article is accompanied by photos and short videos. Read this article!
Sunday, April 24, 2016
Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25 minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond. (You may have to give this time to load, as it is an embedded video file).
For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse."
April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, April 19, 2016
I recently caught a rebroadcast of a Terry Gross interview -- from early 2015 and linked here -- with Dr. Frances Jensen, a neuroscientist from the University of Pennsylvania, on the "teenage brain." It was fascinating, especially as Dr. Jensen explained the latest thinking on trauma on the younger brain, and the potential for alcohol and drug use -- both illegal and legal -- to be especially significant to the still developing teenage brain. Given that we need those brains to last for a very long time, the broadcast seems relevant to our Elder Law Prof Blog topics.
This insulation process [from myelin] starts in the back of the brain and heads toward the front. Brains aren't fully mature until people are in their early 20s, possibly late 20s and maybe even beyond, Jensen says.
"The last place to be connected — to be fully myelinated — is the front of your brain," Jensen says. "And what's in the front? Your prefrontal cortex and your frontal cortex. These are areas where we have insight, empathy, these executive functions such as impulse control, risk-taking behavior."
This research also explains why teenagers can be especially susceptible to addictions — including drugs, alcohol, smoking and digital devices.
And as to that last item on the list -- digital devices -- Dr. Jensen emphasized her concerns about constant stimulation, especially when it lasts into time meant for sleeping. The intense light alone may be interfering with with sleep and brain development. She explains:
First of all, the artificial light can affect your brain; it decreases some chemicals in your brain that help promote sleep, such as melatonin, so we know that artificial light is not good for the brain. That's why I think there have been studies that show that reading books with a regular warm light doesn't disrupt sleep to the extent that using a Kindle does.
I'm from a generation that didn't pay much attention to closed head injuries -- indeed, I think we more or less thought of "mild concussion" as a right of passage for young athletes. Only in the last few years are we beginning to accept the connection between such injuries and later brain degenerative processes. Now, even as we're getting better about physical risks from sports, we need to work harder to avoid the almost round-the-clock effects of our computerized lives.
Dr. Jensen closed the interview with sound advice for everyone:
GROSS: We are out of time, but I just want to ask you if there's any quick tip you can give us to preserve our brain health - something that you would suggest that adults do?
JENSEN: I think [take] time to reflect on what you've done every day, to underscore for yourself the most important things that happen to you that day and to not respond to conflict - to try to not respond to conflict in the midst of your working environment, for instance, because it will color your efficacy.
For more, look for Dr. Jensen's book: The Teenage Brain: A Neuroscientist's Survival Guide to Raising Adolescents and Young Adults.
Thursday, April 7, 2016
The Journal of American Medical Association (JAMA) Network, JAMA Psychiatry ran an article about a study looking at depression and dementia. Trajectories of Depressive Symptoms in Older Adults and Risk of Dementia considers that "[d]epression has been identified as a risk factor for dementia. However, most studies have measured depressive symptoms at only one time point, and older adults may show different patterns of depressive symptoms over time." The study came to the conclusion that a time line of consideration of a patient's depression may give a better picture of the patient's future potential for dementia ("Older adults with a longitudinal pattern of high and increasing depressive symptoms are at high risk for dementia. Individuals’ trajectory of depressive symptoms may inform dementia risk more accurately than one-time assessment of depressive symptoms.")
Wednesday, April 6, 2016
American Society on Aging (ASA) recently posted about 5 TED talks on Aging. 5 TED Talks on Aging to Inspire You range from curing Alzheimer's to a grandson's invention to help his grandfather with dementia from wandering. There's a talk from Diana Nyad about her historic swim ("In the pitch-black night, stung by jellyfish, choking on salt water, singing to herself, hallucinating ... Diana Nyad just kept on swimming. And that's how she finally achieved her lifetime goal as an athlete: an extreme 100-mile swim from Cuba to Florida") and a chat between Lily Tomlin and Jane Fonda where they "discuss longevity, feminism, the differences between male and female friendship, what it means to live well and women's role in future of our planet. 'I don't even know what I would do without my women friends," Fonda says. "I exist because I have my women friends.'"
Check them out!
Tuesday, April 5, 2016
a statistical resource for U.S. data related to Alzheimer’s disease, the most common cause of dementia, as well as other dementias. Background and context for interpretation of the data are contained in the Overview. This information includes descriptions of the various causes of dementia and a summary of current knowledge about Alzheimer’s disease. Additional sections address prevalence, mortality and morbidity, caregiving, and use and costs of health care, long-term care and hospice. The Special Report discusses the personal financial impact of Alzheimer’s disease on families.
The costs of caring for a relative or friend with Alzheimer’s disease or another dementia can have striking effects on a household. These costs can jeopardize the ability to buy food, leading to food insecurity and increasing the risks of poor nutrition and hunger. In addition, the costs can make it more difficult for individuals and families to maintain their own health and financial security. Lack of knowledge about the roles of government assistance programs for older people and those with low income is common, leaving many families vulnerable to unexpected expenses associated with chronic conditions such as Alzheimer’s and other dementias. Better solutions are needed to ensure that relatives and friends of people with dementia are not jeopardizing their own health and financial security to help pay for dementia-related costs.
Thursday, March 31, 2016
A friend sent me several recent resources about elders with dementia. The Hospice and Nursing Home Blog published a video on Doctors’ End-of-Life Language, Impact on Patient-Caregiver Decisions. The Agency on Healthcare Research and Quality published Nonpharmacologic Interventions for Agitation and Aggression in Dementia. The pdf of the article is available here. Finally, in February, 2016, this article, Palliative care of patients with advanced dementia was published in UpToDate (which is "an evidence-based, physician-authored clinical decision support resource....")
Thanks to my friend Pamela Burdett for sending me the links to these 3 publications.
Tuesday, March 29, 2016
Roz Chast's memoir of life with her parents as they aged, Can't We Talk About Something More Pleasant?, uses humor to explore the complicated issues that can arise when aging parents and their adult children try to address physical frailty and financial complexities in the "third age" of life. Another look, equally realistic and also ruefully humorous, comes from William Power, writing for the Wall Street Journal in "The Difficult, Delicate Untangling of Our Parents' Financial Lives." Thanks to the WSJ for making this an unlocked article for digital access!
Power begins with that ever-humbling attempt to use "help lines" to solve problems by phone:
“No, no, no, don’t transfer me to her again,” pleads my wife. It is a typically frustrating moment in our family crisis, one that many grown children will have to face, ready or not: We are people in our 50s who are unraveling the finances of parents who can no longer do it themselves.
My wife, Julie, is on the phone with the company where her 82-year-old dad had once worked, trying to change the direct deposit of his pension checks to a bank closer to the assisted-living home where he and his wife now live, which is near us in Pennsylvania. Again and again, she is transferred to the person in charge, “Rose.” And every time, the same recording: “This number has been disconnected.”
Power's account is punctuated by practical advice for others, including the importance of teamwork, involving both family members and others, in tackling the issues, as well as the use of key document-based tools, including Powers of Attorney, or as he stresses, "Repeat after Me: POA, POA, POA."
My thanks to Amy Bartylla, a long-time friend, for this article referral.
March 29, 2016 in Advance Directives/End-of-Life, Consumer Information, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0)
Monday, March 28, 2016
The Washington Post ran an article on March 17, 2016 about the work on Alzheimer's researchers at MIT have been doing . MIT scientists find evidence that Alzheimer’s ‘lost memories’ may one day be recoverable explains that "[a] new paper published Wednesday by the Massachusetts Institute of Technology's Nobel Prize-winning Susumu Tonegawa provides the first strong evidence of this possibility and raises the hope of future treatments that could reverse some of the ravages of the disease on memory." The research and results were featured in an article in Nature The abstract explains
Alzheimer’s disease (AD) is a neurodegenerative disorder characterized by progressive memory decline and subsequent loss of broader cognitive functions. Memory decline in the early stages of AD is mostly limited to episodic memory, for which the hippocampus has a crucial role. However, it has been uncertain whether the observed amnesia in the early stages of AD is due to disrupted encoding and consolidation of episodic information, or an impairment in the retrieval of stored memory information. Here we show that in transgenic mouse models of early AD, direct optogenetic activation of hippocampal memory engram cells results in memory retrieval despite the fact that these mice are amnesic in long-term memory tests when natural recall cues are used, revealing a retrieval, rather than a storage impairment. Before amyloid plaque deposition, the amnesia in these mice is age-dependent, which correlates with a progressive reduction in spine density of hippocampal dentate gyrus engram cells. We show that optogenetic induction of long-term potentiation at perforant path synapses of dentate gyrus engram cells restores both spine density and long-term memory. We also demonstrate that an ablation of dentate gyrus engram cells containing restored spine density prevents the rescue of long-term memory. Thus, selective rescue of spine density in engram cells may lead to an effective strategy for treating memory loss in the early stages of AD.
(citations omitted). A subscription or fee is required to access the full article.
Wednesday, March 23, 2016
My colleague Becky Morgan shared a good item this week on statistics about the number of elderly inmates, with growth of needy inmates increasing the burden on state prisons.
Another perspective on the issue comes this week via the San Jose Mercury News, reporting on California's Elderly Parole Program:
The Elderly Parole Program was instituted by a federal three-judge panel after a 2013 class-action lawsuit successfully argued that conditions in California's overcrowded prisons, including poor health care, amounted to cruel and unusual punishment. As a result, the court ordered California to reduce its inmate population. The Elderly Parole Program and a realignment program to move nonviolent convicted felons back to county jails are among the solutions. The Elderly Parole Program will be in effect at least until California meets its prison population targets.
In Sacramento, prosecutors and victims rights groups have been working to prevent this temporary program from becoming state law. They scored a small victory last week when, after a call from this newspaper, state Sen. Mark Leno, D-San Francisco, gutted Senate Bill 1310, which he introduced last month. The original bill would not only make the Elderly Parole Program state law, but it would also lower the eligibility age to 50 and the time in prison to 15 years.
The withdrawal was unexpected and came with little explanation. Leno said in a statement Thursday that the bill would be used as a place holder for "other criminal justice reforms" and that "the bill will not deal with the issue of elder parole."
The article reports that since the Elderly Parole Program began in February 2014, more than 1,000 inmates have had parole hearings, with 371 granted parole, 89 deemed "not ready," and 781 denied release. In the article, the reality of the hearings is seen through the eyes of one victim, who faced the trauma of attending a parole hearing to argue that the man who sexually assaulted her and others some 30 years ago, should serve his full sentence or die in prison -- 141 years.
No easy answers here. For more read, "California's Elderly Parole Program Forcing Victims to Face Attackers Decades Later."
Sunday, March 20, 2016
We have previously written about the topic of elder inmates and the implications for prisons with the graying of the prison population. Here is one more story on the topic, published March 17, 2016. Pew Charitable Trust's Stateline (which "provides daily reporting and analysis on trends in state policy....") ran the story, Elderly Inmates Burden State Prisons.
Nearly every state is seeing that upward tick in elderly state prisoners. In Virginia, for example, 822 state prisoners were 50 and over (corrections officials usually consider old age for prisoners to begin at 50 or 55) in 1990, about 4.5 percent of all inmates. By 2014, that number had grown to 7,202, or 20 percent of all inmates.
For state prisons, the consequence of that aging is money, more and more of it every year. Health care for aging prisoners costs far more than it does for younger ones, just as it does outside prison walls. Corrections departments across the country report that health care for older prisoners costs between four and eight times what it does for younger prisoners.
In terms of reducing the number of elder inmates, according to the study, some states are using diversion programs, early release or compassionate release. We all have heard about increasing longevity, but that doesn't necessarily explain the rise in elder inmates. The story notes that correctional personnel offer two factors to explain this rise: "[o]e is a steady increase in the rate of older adults entering prison. The second, and more potent, factor is changes enacted in the get-tough-on-criminals 1990s that resulted in longer prison sentences."
Knowing about the physical limitations some may have as they age, one can only imagine the accommodations prisons have had to make, including the use of "ramps and shower handles and ... other physical modifications. Many prisons have had to create assisted living centers with full-time nursing staffs.... In addition, at least 75 U.S. prisons ..., provide hospice services for dying prisoners...."
One prison mentioned in the story has an ALF, but the waiting list is such that prisoners must need assistance with 2 or more ADLs to be considered. Poor health when entering prison is not unusual. And being old and in prison may be even tougher than for younger inmates.
Prison is a particularly treacherous place to get old. Getting to a top bunk is difficult for many aging prisoners, as is climbing stairs. Hearing loss, dementia and general frailty can make it difficult to comprehend or obey rules. And being infirm in an institution full of young predators can make older prisoners vulnerable. “If there’s an old lion or gazelle... the young ones are going to take advantage.”
Once they get out, finding a place to go becomes another challenge according to the article. Some states have taken different approaches to deal with the graying prison population, from financing the facilities that provide the needed care (such as a dementia unit in the prison) to contracting with a private facility to provide the care to "geriatric conditional release."
And what about the likelihood of reoffending? "Studies have found that older ex-offenders are less likely than younger ones to commit additional crimes after their release. But politicians and the public don’t seem willing to release former murderers, rapists and sex offenders, even though they are decades removed from their crimes and physically incapable of repeating them...."