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.
Monday, September 26, 2016
Home care workers have many different titles and roles, but a common problem for all is the rate of pay. Many work long "block" shifts of 10 or more hours at a time. Many are employed by agencies that charge clients $20+ per hour while paying the workers less than half that rate. Home care agencies typically offer no or minimal benefits. At the same time, for families facing the prospect of care for elderly parents or grandparents, increasing the hourly rate and/or mandating overtime rates can quickly become unaffordable. Home care is often not covered by insurance, especially if the care is not deemed to be "medically necessary."
The New York Times recently offered a portrait of the problems, beginning with evidence the average hourly rate for home care workers has actually gone down -- from a national median of $10.21 (adjusted for inflation) in 2005 to $10.11 in 2016:
This helps explain why Patricia Walker, 55, a certified nursing assistant who works for a Tampa home care agency and provides care for two older men — and hasn’t received a raise in five years — must rely on $194 in food stamps each month.
“It helps me a lot, because I don’t have to wait for my paycheck to buy food,” she told me.
Still, working only 16 hours a week while hoping for more, at $10 an hour, means she can’t afford a place to live. “I would love to be able to put a key in my own door and know this is mine,” she said.
Instead, she pays friends $50 every other week to rent a room in their apartment.
Home care aides, mostly women and mostly of color, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million.
For more, read As Their Numbers Grow, Home Care Aides Are Stuck at $10.11.
Friday, September 9, 2016
When I was growing up in Arizona, my father and I spent a lot of time on the road, and we would often comment on the small white crosses found along the highways marking the locations of fatal car accidents. Perhaps this conversation was a bit morbid in retrospect, but the presence of the crosses made an impression on me, demonstrating just how significant a momentary lapse of awareness can be for drivers operating at high speeds. I'm not sure when those state-sponsored memorials ended, but you still sometimes see markers installed by families. They can vary from simple to elaborate. In the Southwest generally, they are sometimes known as "descansos," a Spanish word for "resting places," and there is a long tradition behind them.
More recently in Arizona, the tradition has been challenged, with state authorities aggressively removing the impromptu memorials as "safety hazards" in early 2016, citing long-standing laws prohibiting such markers. An Arizona newspaper chronicled the issues earlier in the year:
For the past 15 years, Pete Rios would say a special silent prayer as he drove past a large white cross that sat on top of a rocky hill just alongside the road on his way to work.
As a little boy, he said, he was told “that’s what you do to show respect” for the many memorial sites that line Arizona highways, marking the deaths of loved ones.
One in particular was special to the Pinal County supervisor.
It bore the initials of his sister, Carmen Rios, who had been killed near that spot by a drunken driver in 2000. It sat surrounded by a 3-foot angel, faded in color from years of sun beating down on it, and ceramic vases that held new flowers with every passing holiday and changing of seasons.
Last week, the memorial disappeared.
When dozens of crosses along Arizona highways disappeared suddenly, families protested. They countered the "safety" argument, pointing to the absence of any evidence that the small crosses caused drivers to stop or otherwise change their course of driving. The Arizona Department of Transportation offered "alternatives" as memorials, suggesting families could participate in Arizona's "adopt a highway" program.
The grassroots advocacy of families took hold, and recently the Arizona Department of Transportation announced a new policy:
Recognizing the need of families to grieve in different ways for those killed in crashes, the Arizona Department of Transportation has established a policy allowing memorial markers along state-maintained highways in a way that minimizes risks for motorists, families and ADOT personnel.
Developed with input from community members, the policy specifies a maximum size and establishes standards for materials and placement so markers present less chance of distracting passing drivers or damaging vehicles leaving the roadway....
- Size and materials: A marker may be up to 30 inches high and 18 inches wide, and the wood or plastic/composite material components used to create it may be up to 2 inches thick and 4 inches wide. It may include a plaque up to 4 inches by 4 inches and up to 1/16 of an inch thick. It may be anchored up to 12 inches in the ground, but not in concrete or metal footings.
- Placement: In consultation with ADOT officials, families will place markers as close as possible to the outer edge of the highway right of way. Markers may only be placed in front of developed property if the property owner gives written permission to the family.
It turns out that states across the nation have different laws and policies governing roadside memorials. And, I guess I'm not entirely surprised to discover law review articles on this very subject. Florida Coastal Associate Law Professor Amanda Reid has two very interesting pieces, including "Place, Meaning and the Visual Argument of the Roadside Cross," published in 2015 in the Savannah Law Review.
Monday, August 15, 2016
In July, I drove some 2500 miles, from Pennsylvania to Arizona, to begin an exciting sabbatical opportunity. I enjoy this drive (especially since I tend to do it fairly rarely, perhaps once every seven years). I frequently visit friends along the way, and this summer I was struck by how many friends had saved up tough elder law stories for me.
A theme emerged from their stories. They would tell me, "I have an aging friend (or sometimes a family member or neighbor) who is in serious danger of physical or financial harm, but refuses to cooperate with reasonable plans to solve the problems. What are my options to help this person I care about?"
In one instance, it seemed clear the at-risk individual was affected by some level of cognitive impairment. But how to know for sure? Was the refusal to cooperate with a "better plan" the product of a sound, if somewhat eccentric mind? A neurocognitive assessment seemed warranted. We tried to arrange one. But the earliest appointment available was more than 60 days away and the potential for harm was immediate.
Thus, it was with great interest I read a preview of an article in the upcoming issue of the ABA publication, Bifocal. Professors Marshall Kapp, Shenifa Taite and Gregory Turner outline "Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other." They are writing about a critical need for Medical-Legal Partnerships designed specifically to assist older persons and their family members. For example, on the topic of "self-neglect," the authors explain:
Mistreatment of older persons by others is a serious problem. Both the medical and legal conundrums became more complicated, and thus even more amenable to interprofessional collaboration, when self-neglect is entailed. A significant percentage of older adults, mainly living alone, do not regularly attend to their own needs or well-being regarding health care, hygiene, nutrition, and other matters. The majority of cases reported to APS agencies by health and social service professionals and family members are triggered by suspected self-neglect. The health care system expends considerable efforts trying to intervene in these situations to prevent increased rates of hospitalization, nursing home placement, and even death.
In situations involving suspected elder self-neglect, the physician’s role is vital in recognizing the potential problem, characterizing the nature and seriousness of the risk posed, and trying to identify clinically and socially viable intervention strategies. Among other concerns, decisional capacity issues almost always arise in these cases. The physician may look to an attorney for advice about legal reporting requirements or options, as well as the legal boundaries within which interventions may be designed and implemented in a manner that best respects the older person’s dignity and autonomy while protecting the vulnerable at-risk individual from undue foreseeable, preventable self-generated harm.
A growing number of law schools (including Penn State's Dickinson Law) have established Medical-Legal Partnership Clinics, where the collaborative relationship between attorneys and physicians is established in advance of need by clients. Often such clinics focus on younger clients, especially children. Elder-specific services are an important subset of the services that can be provided in a timely and professional setting. For more, read the full Bifocal article published in the-August 2016 issue -- and ask whether such services are available in your community.
August 15, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, Legal Practice/Practice Management | Permalink | Comments (0)
Thursday, August 11, 2016
Serious bummer. According to an article in the Washington Post, the fight against ageism is a losing battle. Baby Boomers are Taking on Ageism---and Losing starts with the challenges that boomers face in the workplace: continuing in their jobs supervised by younger folks, or returning to the work force. This quote gave me pause: "At a time when conditions have vastly improved for women, gay people, disabled people and minorities in the workplace, prejudice against older workers remains among the most acceptable and pervasive “isms.” And it’s not clear that the next generations — ascendant Gen Xers and millennials — will be treated any better." Thus, we all should be concerned about ageism.
Ageism, not a new phenomenon, is explored from several angles in this article.
That bias [for young] is so common we frequently don’t recognize it. Todd Nelson, a psychology professor at California State University at Stanislaus, has singled out birthday cards for portraying advancing age as something to be ashamed of, with a tone that would never be used with race or religion. (“ ‘Ha-ha-ha, too bad you’re Jewish’ ... wouldn’t go over so well,” he noted.)
Internet memes like the “Scumbag Baby Boomer” and “Old Economy Steve,” which lambast boomers for transgressions from failing to adopt technology to causing the wars and recessions that millennials have weathered, channel resentment against an entire category of people in ways that might not be tolerated if they were members of another protected class.
As a big believer in life-long learning, I was concerned that there are those who have mindsets regarding the talents of those who are older. "In a 2015 survey by the Harris Poll, for example, 65 percent of boomers rated themselves as being the “best problem-solvers/troubleshooters,” and only 5 percent of millennials agreed. Fifty-four percent of millennials thought boomers were the “biggest roadblocks.” Sometimes these perceptions come straight from the top: Facebook founder Mark Zuckerberg once said 'young people are just smarter.'"
After looking at the laws that protect against age discrimination, the article examines some of the causes of ageism and efforts to thwart it. This article could be the foundation for a great discussion during the first week of your class. Check it out!
Wednesday, June 15, 2016
In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower." Her experiences with retaliation -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.
In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:
An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services]. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.
Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."
Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring. She cautions:
I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.
It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....
When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.
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)
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.
Tuesday, May 3, 2016
The New York Times ran a story on May 2, 2016 that South Dakota is under investigation by the federal government for improperly placing many residents with disabilities in nursing homes instead of providing care in the community. South Dakota Wrongly Puts Thousands in Nursing Homes, Government Says reports that "the Justice Department said ... that thousands of patients were being held unnecessarily in sterile, highly restrictive group homes. That is discrimination, it said, making South Dakota the latest target of a federal effort to protect the civil rights of people with disabilities and mental illnesses, outlined in a Supreme Court decision 17 years ago."
As the story notes, many individuals need the level of care provided by a nursing home, but others do not. "But for untold numbers of others — with mental illnesses, developmental disabilities or chronic diseases — the confines of a nursing home can be unnecessarily isolating. Yet when patients seek help paying for long-term care, states often steer them toward nursing homes, even though it may not be needed." The article discusses the Olmstead decision and the government's strategies in these cases to challenge the placement.
South Dakota responded that they have made progress but the federal government sees it as not enough, especially since this is not a recent situation. "In-home health aides can be less expensive than nursing homes because they do not provide unnecessary services. States, though, face a chicken-or-egg conundrum. Does money go to nursing homes because beds are often more readily available than in-home services? Or are there fewer in-home services because less Medicaid money is spent on them? And nursing homes have little financial incentive to encourage patients to seek in-home care...."
This article can be a great starting point for an interesting discussion with students.
Wednesday, April 27, 2016
Southern California attorney and mediator Jill Switzer, who writes columns for Above the Law as "Old Lady Lawyer," uses lyrics from Kenny Rodger's The Gambler as part of her theme in a recent essay. She asks whether lawyers prepare themselves, not just financially, but emotionally, to retire at the right time. Suggesting the answer is "probably not," Switzer draws on data from a recent California State Bar survey:
On its website, the State Bar of California recently asked its lawyers “how long do you plan to keep practicing law?” The poll was completely unscientific, as it didn’t tally the results by age, years in practice, or any other criteria whatsoever. However, the result was not surprising, at least to this dinosaur: more than fifty percent of the responding lawyers said they would continue to practice as long as they are able. (Ten percent or so said they were looking to switch careers as soon as possible, approximately twenty percent said that they hoped to take early retirement, and approximately fifteen percent said they’d practice until they turned sixty-five. Note to millennials: the retirement age at which you can start receiving full Social Security benefits is creeping upward.)
And speaking of "farewell," did you notice that Above the Law recently terminated the "comments" option for readers of the frequently sharp-tongued blog? Details here, and I suspect a few readers might view this change as somewhat ironic.
Tuesday, April 26, 2016
I was bemused to realize that I was on my way to vote today in the primaries in Pennsylvania without knowing in advance the outcome of a dispute over language to be used on an a referendum issue on the ballot. The issue was mandatory retirement ages for judges in Pennsylvania. In Pennsylvania, state judges are elected.
An early formulation of the referendum question was as follows:
Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?
An alternative proposal for the wording was:
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?
Interesting, yes? The wording does appear to potentially influence the outcome on the referendum, particularly in a state where there has been a fair amount of turmoil about behavior of members of the judiciary, unrelated to age issues, but also unlikely to make the average member of the public eager to vote to extend time in office. From an education-of-the-voter standpoint, I was relieved when I saw the latter version on the ballot.
For more, read Penn Live's recent coverage on the "age" issue here. Plus, look for the outcome on the issue in news coverage after Tuesday's primary election.
4/26/16 Noon UPDATE: It turns out that even though "my" precinct's electronic ballot contained a referendum regarding the mandatory retirement age for judges, any vote on that issue doesn't actually count. The Pennsylvania legislature voted to take the judicial age question off the primary ballot. So, despite my own preference for an "educate-the-voter" version for such a referendum, on November 8 the "first" version of the language quoted above will appear. Hmmmmm. Here's more on this topic.
Tuesday, March 15, 2016
Our thanks to George Washington Law Professor Naomi Cahn for passing on this item from the Washington Post:
“I speak to a lot of big audiences of people over 50 looking for jobs,” says Kerry Hannon, career expert and author of “Getting the Job You Want After 50 for Dummies.” “I feel and I see the palpable fear. The job market has not improved for this set of people.”
“It’s not a pretty scene,” she says. “What happens is people say they will keep working, but for various reasons, including health, they don’t keep working.”
Employment consultant Sara Rix says surveys show that up to 80 percent of people think they will work in retirement. A much lower percentage of people actually do (19 percent, according to the AARP).
People don’t continue working for many reasons: layoffs, health and unexpectedly becoming a caregiver are just a few.
Those still able to work can face tremendous difficulties finding a new job. The elephant in the room is age discrimination....
For the full article by Columnist Rodney Brooks, see "Not Ready to Retire, But Not Finding Work."
Monday, January 25, 2016
I think I might like winter better, if it always happened "conveniently" and with plenty of notice, as did Saturday's snow in Pennsylvania. For once, I was prepared to be at home, with a stack of good reading materials for catching up when the joys of house-cleaning and snow shoveling faded.
I am intrigued by the Fall 2015 issue of the NAELA Journal that focuses on how advances in genetic testing and medicine may be reflected in the roles of lawyers who specialize in elder and special needs counseling. A leading article in the issue introduces the three primary uses of modern genetic testing -- for diagnosis of disease, for determination of carrier status, and for predictive testing -- while reminding us there are limits to each function. In looking at age-related issues, the authors note:
Genetic testing is beginning to reveal information regarding susceptibilities to the diseases associated with old age: Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. Genetic test results showing a higher risk of such diseases can result in a cascade of consequences. Francis Collins, mentioned at the beginning of this article, responded to his test results thoughtfully by making lifestyle changes to reduce the probability that the increased genetic risk would be expressed in actual disease. It is important to note that, for some conditions, lifestyle factors’ influence on disease risk is understood; however, for many of the conditions that affect seniors, this influence is not yet known.
Other reactions to a high-risk test result may be more aggressive than diet and exercise changes. A well-publicized example is Angelina Jolie’s bilateral mastectomy. She was cancer-free but learned that she carries a BRCA1 mutation, which increases her lifetime risk for breast and ovarian cancer. She chose to undergo prophylactic mastectomy to reduce her breast cancer risk, whereas other women choose to increase breast cancer surveillance, such as undergoing more mammograms and breast MRIs. Both options are available to women who carry a BRCA1/2 mutation.
Will those found to be at elevated risk for more complex conditions such as Alzheimer’s disease or Parkinson’s disease make premature life choices, such as early retirement or marriage, based on perceived risk? Earlier in this article it is explained that an individual’s genotype rarely determines his or her medical destiny. For example, many people with a higher genetic risk for Alzheimer’s disease will not actually develop it, while many with no apparent higher genetic risk will. Is the risk that members of the general public will misunderstand and overreact to the results of a genetic test sufficient reason to prevent them from obtaining the information gleaned from such a test? Should we be ensuring that those undergoing genetic testing are aware of its benefits and limitations through individualized genetic counseling? This, of course, presents its own challenges of access and availability.
In reading this, it seems likely that lawyers may encounter complicated issues of confidentiality, especially when counseling "partnered" clients, while also increasing the significance of long-range financial planning and assets management.
For more, read Genetic Testing and Counseling Primer for Elder Law and Special Needs Planning Attorneys, by CELA Gregory Wilcox and Rachel Koff, Licensed Certified Genetic Counselor.
January 25, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Estates and Trusts, Ethical Issues, Retirement, Science | Permalink | Comments (0)
Friday, January 22, 2016
In South Korea, "filial duty" is apparently a hot topic, as reflected by a recent Korean Supreme Court ruling and a public survey. And it is more than a theoretical concept or moral obligation, with "contract" law principles now coming into play. As reported in English by the Korea Herald, published on December 30, 2015:
More than 75 percent of South Koreans surveyed by a local pollster think “filial duty contracts” -- a legal document that makes it mandatory for all grown children to financially and emotionally care for their aged parents -- are necessary should they receive any gifts such as real estate or stocks from them.
The survey results were released two days after the Supreme Court ruled in favor of an elderly father who filed a suit against his son, who, in spite of signing a filial duty contract, did not care for his ill mother as promised after receiving a personal estate. The court acknowledged the legality of the document and ruled the son must return the property to his father, as the property was gifted in exchange for his support.
Although "filial duty" has long been considered an important, traditional value in Korea, "the nation's changing family structure" and high costs for housing and education apparently have made it more difficult for elderly Koreans to rely on their children for voluntary care. The survey, of 567 Koreans, showed strong support for greater enforcement of "filial duty contracts."
Under the current law, a donor may rescind a gift contract if the recipient committed an act of crime against the donor, or if “the beneficiary is obliged to support the donor but does not do so.” However, the law also states that rescinding a gift contract does not have any effect once the gift has already been given to the beneficiary.
For more details, including a report on a pending bill that would give "Korean parents the right to sue their children in case of mistreatment and to ask them to return any gifts," read "77% of South Koreans See Need for 'Filial Duty Contracts.'"