Friday, May 4, 2018
Recently I was asked the question whether a CCRC could bar new residents from moving into independent living units, if they were using wheelchairs or walkers. The question perplexes me, not just because of the legal implications under the Fair Housing Act and the Americans with Disabilities Act, and other federal laws, but because I do understand what was motivating the question, at least in part. It was a concern about "sustainability" of the community living model, and the need to attract younger, healthier residents. In a sense, it was an argument that "I don't mind, but others might."
Paula Span, longtime columnist for the New York Times takes this issue to another venue -- "assisted living" -- where some operators are attempting to ban those who use wheelchair, even temporarily. The cited reason is that "we cannot accomodate a wheel-chair bound patient." She captures the dilemma well in her title, "Wheelchairs Prohibited In the Last Place You'd Expect."
Ultimately, I think we all need to be more comfortable with the fact that we do grow old and we do sometimes need assistance. But, I understand, this is tough to accept.
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Sunday, February 25, 2018
As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals. The Court tackles head-on the issue of who has the power to take action to address improper discharges.
On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge." Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits.
In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.
The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland. The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state. As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."
There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see State of Maryland v. Neiswanger Management Services LLC..
For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.
See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.
February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, February 23, 2018
The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note. From the opening paragraphs:
Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.
The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.
Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.
This article is definitely worth a careful read.
February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, January 17, 2018
I've sat in on dozens of mental acuity screening exams for individuals exhibiting indications of some form of dementia.
Regarding the "perfect score" reportedly received by President Donald Trump on a mental acuity screening test during his January health exam, it may be helpful to consider what is -- and isn't -- covered by such assessments. One view is provided in an opinion piece this week in the Washington Post, using history from a criminal case where Brooke Astor's son and an attorney were found guilty of exploiting her alleged mental incapacity. From the article:
On its surface, the Montreal Cognitive Assessment (MoCA) test seems pretty easy. Can you draw a three-dimensional cube? Can you identify these various animals? Can you draw a clock? Can you repeat back the phrase, “The cat always hid under the couch when dogs were in the room”? . . .
If you look at the test, it’s pretty hard to see how you could not score a 30. You see a picture of a lion and have to identify it as a lion? That old joke about how the elderly and toddlers are subject to the same indignities seems pertinent here: Is this really the bar that needs to be met to demonstrate full mental capabilities?
Well, according to those who study dementia and other mental deterioration, yes.
In 2009, I spent six months serving on a jury in the state of New York that was asked to judge the guilt or innocence of a man named Anthony Marshall. Marshall was the son of Brooke Astor, a New York socialite and heiress to the much-diminished Astor fortune. If you’ve ever traveled to New York, you’ve encountered the name: Astor Place, the Waldorf-Astoria or the Astoria neighborhood in Queens. Marshall was accused of having taken advantage of Astor’s diminished mental state to change her will without her being aware of the changes made. Ultimately, the 12 members of the jury found Marshall guilty of several charges.
Over the course of that trial, we were presented with a great deal of information about how doctors assess the mental capabilities of a patient. This was critical to the prosecution; were they not able to prove that Astor’s mental state was diminished, it undercut their argument that Marshall had acted without his mother’s consent. As such, expert witnesses testified about their personal examinations of Astor and others spoke to the reliability of the tests.
Central to that case was one of the components of the MoCA test: drawing a clock. Astor was asked repeatedly to draw analog clocks as a test of her mental acuity. On more than one occasion, she was unable to do so properly. . . .
The point is not that the test is easy. The point is that an inability to complete aspects of the test reveals different types of mental decline. The clock test is about executive brain function: memory, planning ahead. The different parts of the MoCA are labeled according to what they test, with the clock test falling under “visuospatial/executive.” Questions about the current year and date are under “orientation.” The request to identify a drawing of a camel is under “naming.” In the test’s scoring instructions, it explains what is covered: “attention and concentration, executive functions, memory, language, visuoconstructional skills, conceptual thinking, calculations and orientation.”
It is, as Trump’s doctor noted, a tool for identifying early signs of mental deterioration, like the mental version of a blood sample on which your doctor runs a battery of tests. It’s not the SAT; it’s a screening device.
For more, read Why You May Be Misunderstanding the Mental Test that Trump Passed with Flying Colors, by Philip Bump.
January 17, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Science | Permalink | Comments (0)
Thursday, December 21, 2017
The New York Times ran an interesting article that was co-researched and co-written with ProPublica, Facebook Job Ads Raise Concerns About Age Discrimination Target marketing is nothing new. I'm sure you all have the experience of having ads for things you might "like" pop up all over webpages you are browsing. So what about target marketing for job applicants? The article notes that a number of large corporations have "placed recruitment ads limited to particular age groups ... The ability of advertisers to deliver their message to the precise audience most likely to respond is the cornerstone of Facebook’s business model. But using the system to expose job opportunities only to certain age groups has raised concerns about fairness to older workers." This then raised the question-whether such advertising would be considered discriminatory. Facebook's response "[u]sed responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work,” said Rob Goldman, a Facebook vice president."
The article explains how this story came about in doing research for another story regarding political ad placement. Now litigation has started, according to the story. "[A] class-action complaint alleging age discrimination was filed in federal court in San Francisco on behalf of the Communications Workers of America and its members — as well as all Facebook users 40 or older who may have been denied the chance to learn about job openings. The plaintiffs’ lawyers said the complaint was based on ads for dozens of companies that they had discovered on Facebook."
There are a number of social media sites used to advertise jobs, and the article notes for example that they may require advertisers to certify compliance with non-discrimination laws. The article discusses a number of legal issues, including what, if any, liability the social media companies may have. It's a fascinating article that presents arguments on both sides of the issue. Check it out!
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.
Monday, November 27, 2017
A Frameworks Institute initiative, Reframing Aging, now includes a free video on reframing aging and ageism. The video can be ordered here. (Although free, you still need to enter your contact information and then receive an email with login info to start the course. The course info explains that the "lecture series, [provides] a guided tour of how to use new, evidence-based framing strategies to communicate more powerfully about aging as a social policy issue." The sponsors of the lecture series are Grantmakers in Aging and the Leaders of Aging Organizations. Topics include “What's in a Name?,” “The Swamp of Cultural Models,” “Rethinking Narrative,” “Stories to Stop Telling,” “Embracing the Dynamic” and “Confronting Injustice.
Tuesday, November 7, 2017
Here's the introduction to the guide:
An important part of the practice of many elder law attorneys is assisting clients to receive and then benefit from Medicaid home and community-based services (HCBS). In March 2014, the Centers for Medicare and Medicaid Services (CMS) published the first ever regulations establishing standards for the settings in which HCBS are provided.1 These regulations will impact the services, quality of life, and rights of HCBS care recipients, as well as the environment in which they receive those services. Each state must develop and implement a plan for how it will come into compliance with the HCBS rules. The involvement of advocates, including elder law attorneys, in influencing the plan and monitoring its implementation is critical. This guide is designed to provide elder law attorneys with a better understanding of the HCBS settings rule and how they can advocate for a strong, effective system that achieves the spirit and intent of the rule.
The report notes that the reason for "HCBS Medicaid services is to be an alternative to institutional settings." Thus, the rule's main reason "is to define the qualities that make a setting a home that is truly part of a larger community." Additionally, the rule is designed to confirm that those recipients really are part of their community. Last, but not least, the rule is intended to make the lives of these folks better as well as getting them more choice and protections. The report can be downloaded here.
Monday, October 9, 2017
Steve Moran, who writes for Senior Housing Forum, a website that offers itself as a "place for conversation and collaboration," always seems willing to take on sensitive topics. Recently, in a commentary piece entitled Black Consumers and Senior Living, he nonetheless began:
I am terrified to be writing and publishing this article. It seems that writing anything about race is fraught with all kinds of downsides and very little in the way of upside. Except that we have an ethnic problem in senior living. Today, based on resident populations, only white people (and Asians) seem to like senior living.
He addresses provider attempts to "explain away" the problem and arguments about whether "Blacks and Whites have different world views." Ultimately, recognizing the need for both sensitivity and fearlessness, he concludes, "[I]f senior living is really a great thing, and I believe it is, then we have an obligation" to make it available to everyone.
Certainly there are "marketing" reasons to reach out to a broader circle of perspective clients to offer supportive, attractive community living. But, I think Steve's short post is a good start on other fundamental questions about what consumers want, need, expect, and cherish as they approach some invisible line that makes them eligible for senior living.
Monday, September 18, 2017
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.
Thursday, September 7, 2017
We're seeing specific industries report on the expected impact from termination of the DACA program for otherwise undocumented workers. Broadly speaking, long-term care (LTC) is already experiencing a worker-shortage, as we've reported here in the past. From the New York Times:
Mr. Sheik is the chief executive and founder of CareLinx, which matches home care workers with patients and their families. The company relies heavily on authorized immigrant labor, making the looming demise of the program — which has transformed around 700,000 people brought to this country as children into authorized workers — a decidedly unwelcome development. The move, Mr. Sheik said, would compound an already “disastrous situation in terms of shortages of supply.” He added, “This is a big issue we’re focusing on.”
Surveys of DACA beneficiaries reveal that roughly one-fifth of them work in the health care and educational sector, suggesting a potential loss of tens of thousands of workers from in-demand job categories like home health aide and nursing assistant. At the same time, projections by the government and advocacy groups show that the economy will need to add hundreds of thousands of workers in these fields over the next five to 10 years simply to keep up with escalating demand, caused primarily by a rapidly aging population.
“It’s going to have a real impact on consumers,” Paul Osterman, a professor at the Sloan School at MIT and author of a new book on long-term care workers, said of the DACA move.
Monday, August 7, 2017
It is estimated that there are approximately 2.7 million LGBT adults aged 50 and older in the United States, 1.1 million of whom are 65 and older. Understanding Issues Facing LGBT Older Adults provides an overview of their unique needs and experiences so that service providers, advocates, the aging network, and policymakers can consider these factors when serving this population or passing laws that impact older adults and the LGBT community
In addition to the 32 page report available for download, you can also access a video, Aging as LGBT: Two Stories and 3 infographics, Lasting Impact of Discrimination, Who are LGBT Elders and Aging as LGBT: Two Stories which is also available in large print for download
Monday, May 22, 2017
In what is described as a "first" for the National Academy of Elder Law Attorneys (NAELA), the organization through its New York Chapter will present argument on behalf of individuals seeking to establish access to "aid in dying." On April 27, the New York Chapter was granted leave to appear as amicus curiae in Myers v. Schneiderman before the New York Court of Appeals. Oral arguments are scheduled in Albany on May 30, 2017.
At issue is New York's penal law prohibiting assistance in "suicides." The original suit, filed in February 2015, sought a ruling that the statute, characterized by opponents as "antiquated," should be interpreted as not reaching the conduct of a physician that provides aid-in-dying where the patient is terminally ill and mentally competent and voluntarily seeks "terminal medication." Alternatively, the opponents of the law argue that the statute violates the rights of privacy and/or equal protection guaranteed by the New York State Constitution. New York's trial level court dismissed the challenge as a matter of law, on the grounds that New York's penal law was "clear on its face."
In joining the challenge to the dismissal, which was affirmed by appellate division, New York NAELA wrote:
As an organization of lawyers who represent the elderly and persons with disabilities, the New York Chapter [of NAELA] believes that a proper interpretation of New York's "assisted suicide" laws and due consideration of Appellants' constitutional challenges should be based on a fully developed factual record. These are issues of great moment to the elderly and those who love them and to the administration of justice in this State. This Court should have the benefit of a hearing and findings of relevant evidence before deciding them. . . .
What would assist this Court in fairly construing the Penal Law are facts relating to aid-in-dying. While the language of the statute is the starting point for interpretation, its words do not exist in a vacuum.
For more on the arguments, including links to the various parties' appellate briefs in Myers, see the "End of Life Liberty Project."
May 22, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Ethical Issues, Health Care/Long Term Care, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, April 3, 2017
The way Americans currently think about aging creates obstacles to productive practices and policies. How can the field of aging help build a better understanding of aging, ageism, and what it will take to create a more age-integrated society?
To answer this question, a group of leading national aging organizations and funders commissioned the FrameWorks Institute to conduct a Strategic Frame Analysis®, an empirical investigation into the communications aspects of aging issues. In this toolkit, you’ll find this original research as well as a variety of materials to help you apply it. If you use communications to make the case for adapting society to the needs of an aging population, the evidence-based insights here will be useful to you.
You’ll notice that the materials here are primarily designed to build framing concepts and skills. You won’t find “turnkey” handouts that are ready to print, but rather, examples and guidelines that help you work more intentionally and strategically to advance the conversation about older people in the United States.
Sharing and telling a common story is part of what it takes for a movement to drive major and meaningful social change. We invite you to begin to use these framing recommendations in your work, learn more about them, and share them with others working to create a more equal, more inclusive society.
There's a quick start guide and a "frame brief" that provides "an approach to changing public thinking about aging in America." Among other things, the toolkit provides resources as well as suggestions for conversation. Check it out. It could be a great exercise for your law students!
Tuesday, February 28, 2017
Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?" The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.
I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.
With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition):
The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves. Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future. The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....
The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."
While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?"
My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.
February 28, 2017 in Advance Directives/End-of-Life, Consumer Information, Crimes, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Religion, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, November 30, 2016
The NY Times ran an article recently focusing on bias against LGBTQI residents of nursing homes. No Rest at Rest Home: Fighting Bias Against Gays and Lesbians starts with telling the story of one resident who ended up filing suit, in which the resident "accuses the housing center and its managers of failing to protect her from hostile residents who have insulted and verbally abused her. The suit says that she has been pushed, shoved and spit on, and that she was injured, including bruises on her arm, a bump on her head and a black eye." As well in the suit the resident alleges that the facility's "management not only of failing to meet its responsibility to stop the harassment but of retaliating against her for complaining about the abuse and seeking to push her out of the facility."
The article calls this suit as having the potential to "set a legal precedent establishing the responsibility of housing providers to actively address discrimination based on gender identity and sexual orientation under the federal Fair Housing Act. The law states that discrimination based on “sex” is prohibited."
The article quotes our friend Eric Carlson from Justice in Aging, as well as a survey they had previously conducted.
A survey of L.G.B.T. adults living in long-term care settings by Justice in Aging, a legal advocacy group, found that a majority believed they would face discrimination from housing staff if they were open about their sexual orientation. The report captured hundreds of stories of problems encountered by L.G.B.T. seniors with housing staff, ranging from harassment to refusals to provide basic services or care.
“You’re in a communal living setting that puts a lot of pressure on people,” says Eric Carlson, directing attorney for Justice in Aging. “Imagine how oppressive it is to have to be guarded about who you are or your family and friends.”
The article discusses another study and the scope of discrimination against LGBTQI elders as well as HUD's work to redress such discrimination.
Monday, October 24, 2016
Kaiser Health News ran a story, Staying Out Of The Closet In Old Age. The article explores the issues faced by elders who are out and become frail and need caregivers or supportive housing. How significant are the issues faced by these elders? According to one expert quoted in the article, very.
“It is a very serious challenge for many LGBT older people,” said Michael Adams, chief executive officer of SAGE, or Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders. “[They] really fought to create a world where people could be out and proud. … Now our LGBT pioneers are sharing residences with those who harbor the most bias against them.”
Efforts are underway to move long term care providers to a point of understanding. Such efforts include
Nationwide, advocacy groups are pushing to improve conditions and expand options for gay and lesbian seniors. Facilities for LGBT seniors have opened in Chicago, Philadelphia, San Francisco and elsewhere.
SAGE staff are also training providers at nursing homes and elsewhere to provide a more supportive environment for elderly gays and lesbians. That may mean asking different questions at intake, such as whether they have a partner rather than if they are married (even though they can get married, not all older couples have). Or it could be a matter of educating other residents and offering activities specific to the LGBT community like gay-friendly movies or lectures.
The article mentions a report this summer from Justice in Aging (formerly the National Senior Citizens Law Center), How Can Legal Services Better Meet the Needs of Low-Income LGBT Seniors? in which it was reported that 1/5 of those elder LGBTQI individuals in LTC facilities felt ok with being open about being an LGBTQI elder.
The article discusses the difficulty in finding housing and reports on some options that have developed, such as "the Los Angeles Gay & Lesbian Elder Housing organization opened Triangle Square Apartments in 2007. In the building, the first of its kind, residents can get health and social services through the Los Angeles LGBT Center. The wait for apartments with the biggest subsidies is about five years."
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Thursday, October 20, 2016
Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions. In a perfect world, merit-based criteria should be the issue, not age. At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire. The whole family was involved, but it needed to happen.
During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges. The spring initiative read:
Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?
The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary. I voted yes, knowing that many of the most capable judges were still in their prime at 70+
However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative. Instead, in the upcoming general election the following initiative will appear:
Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?
Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like the hide-the-ball tactics. He joined others and challenged the language. His word for the tactic? "Deceitful."
Who had the final say on which language would be used? Ironically, the Pennsylvania Supreme Court. In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.