Wednesday, March 5, 2014
The American Geriatrics Society and the American Board of Internal Medicine Foundation have joined in a venture called "Choosing Wisely," and recently issued "Five Things Physicians and Patients Should Question."
The items are intended to stimulate more thoughtful decision making, especially in dementia care, and address diet, restraints, and use of screening tests. Two items that hit home include:
- Don't prescribe cholinesterase inhibitors for dementia without periodic assessment for perceived cognitive benefits and adverse gastrointestinal effects.
- Don't prescribe any medication without conducting a drug regimen review.
This "Five Things" list was actually the second set of "Choosing Wisely" recommendations. Here's a link to the important first list, which includes the concern about off-label prescriptions of antipsychotic medications to treat symptoms in dementia, a topic that has also been the subject of major whistleblower cases and settlements involving the pharmaceutical industry.
Thursday, February 27, 2014
As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b). The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus. Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.
The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge. There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available. So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:
- What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law.
- Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.
- Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts.
In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."
In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide. Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity."
What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide. The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die. We cannot just stick our heads in the sand and say "this case isn't likely to happen again."
The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.
Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas. As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law.
Thursday, February 20, 2014
In a previous post, I reported on a senior care whistleblower case, where a court ruled that a former corporate officer, who was also the in-house counsel, cannot participate in a False Claims Act suit, if the information supporting the claim comes from privileged communications received in his role as an attorney. The two other former executives of the company, non-lawyers, could have participated as qui tam plaintiffs; however the entire case was dismissed by the court as a sanction for improper disclosure of attorney-client privileged information.
Most whistleblowers are insiders, either current or former employees; however, that is not always true. The "relator" (that's False-Claim-Act-speak for whistleblower) in a suit brought against RehabCare, Rehab Systems, and Health Systems, Inc. was the CEO of a competitor, Health Dimensions Rehabilitation, Inc., who first heard about a successful use of "referral fees" during a public conference call hosted by RehabCare.
"Pride goeth before a fall," as our mothers might say. In this case, the CEO's research into the referral fees resulted in allegations the fees were intended to generate referrals of clients covered by Medicare and Medicaid, thus giving rise to alleged violations of the federal Anti-Kickback Act. The defendants denied all allegations.
In the RehabCare case, which settled earlier this year for a reported $30 million, the whistleblower, Health Dimensions Rehabilitation, Inc. is in line to receive about $5.7 million from the settlement, according to the U.S. Justice Department.
Penn State Dickinson School of Law is hosting a half-day program examining "Whistleblower Laws in the 21st Century," on March 20, 2014. Speakers include both academic scholars and experienced attorneys who have advised or represented parties in False Claims Act cases in health care, including "senior care."
Thursday, February 13, 2014
In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice. Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter. Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest.
On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini. News reports point out that the court order was issued on the one year anniversary of her father's death. The parties had been under a gag order. Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices.
My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.
My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a "Face Book" approach to building momentum for social change and law reform.
Monday, February 10, 2014
Florida elder law and estate planning attorney Carla-Michelle Adams observes that state laws, such as that of her home state, are often silent on whether a guardianship determines the right of a ward to possess or access guns. In an editorial column for the Florida Bar Journal in December 2013, "Grandparents, Guns and Guardianship: Incapacity and the Right to Bear Arms," she urges clarification of state laws to avoid confusion under the Constitution, and contends that guardianship orders should specifically address gun posession:
"It is imperative that the right to bear arms is effectively removed by order of the court upon a finding of incapacity as a preventative measure for the ward and the community at large. Without legislation specifically indicating that the right to bear arms shall be subject to elimination upon a finding of incapacity, there is a question as to whether the Second Amendment right is subject to retention by the mentally incapacitated ward; the [Florida] statute is ambiguous to this end."
Friday, February 7, 2014
In United States ex rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc., decided by the Second Circuit on October 25 2013, we see another qui tam suit, where former employees allege the company's participation in a scheme to defraud Medicare and Medicaid, this time by allegedly underpricing certain services in order to stimulate referrals of clients who qualified for higher rates under Medicare or Medicaid coverage. That allegation triggered the federal Anti-Kickback Statute that applies to federal health care programs.
If anyone is interested in -- or skeptical about -- making a whistleblower claim part of a "business plan," just read this decision. The plaintiff, Fair Laboratory Practices Associates, was formed as a partnership by three former employees, who combined their knowledge in an attempt to confront what they believed were fraudulent sales practices. The federal False Claims Act permits successful whistleblowers to share in any financial recovery for the U.S.
Just one little problem. One of the members of the partnership was a former vice president and general counsel for the defendant corporation, and he was disclosing information received in his role as the only in-house lawyer for the company. Indeed, as reported in the opinion, that is exactly why the other two whistleblowers invited him to join their partnership, because his status as a lawyer "would improve our credibility with the government."
Unfortunately for the plaintiffs' group, it also triggered Rule 1.9 of New York's ethical rules, prohibiting a lawyer from disclosing confidential information of former clients. While the 2d Circuit credited the attorney's contention that he reasonably believed his employer intended to commit a crime, the court concluded the level of disclosure was "greater than reasonably necessary to prevent any alleged ongoing fraudulent scheme." The Court rejected the argument that the policies underlying the False Claims Act trumped the state's ethical rules for legal counsel.
More importantly, the court concluded that although the other two non-lawyer partners could have filed the qui tam action based on the information they alone possessed as former executives for the company, once their knowledge became entwined with the attorney's unauthorized disclosures, the partnership as a group was disqualified. Case dismissed (although the Court does leave the door open for a new relator as plaintiff, or the U.S. on its own).
Here's more on the case by Joseph Callanan, an associate editor for the American Bar Association's Litigation News.
Here is useful background on the federal Anti-Kickback law, courtesy of the American Health Care Association.
Thursday, February 6, 2014
What are "limited license legal technicians" or LLLTs? As defined by the Supreme Court of Washington in an order issued in June of 2012, LLLTs are individuals who achieve certification through a new state program, authorizing them to provide specific legal services within specific substantive areas of law and law-related practice.
Why create the LLLT alternative, especially in a country and during an economy where there are, arguably, more than enough underemployed lawyers? As the Washington Supreme Court carefully details, the current civil legal system "is unaffordable not only to low income people but, as a [2003 state study] documented, moderate income people as well...." For low income people, the "underfunded civil legal system is inadequate" to meet their very real needs. For many who are moderate in income, "existing market rates for legal services are cost-prohibitive." A new means of meeting public need is warranted, says the Court.
Why is a system of licensing LLLTs in the State of Washington potentially very significant to the practice of Elder Law? Washington has identified four areas of unmet civil law needs: Family Law, Immigration, Landlord/Tenant, and... yes, Elder Law.
Very interesting! The first practice area to be certified in Washington will be "Domestic Relations," with the Limited License Legal Technician Board expecting to begin accepting applications for a licensing examination in late summer or early fall of 2014. No indication yet on when "Elder Law" LLLTs might be certified. In the roll-out design, applicants must first satisfy threshold educational standards, including holding at least an associate level degree, plus 45 credit hours at an ABA-approved program (which, for the moment at least, means an ABA approved law school). Details on the certification process are available on the Washington State Bar Association's website, here. The University of Washington's School of Law has announced its "inaugural program" for LLLTs in family law to begin in the winter quarter of 2014.
While I suspect this movement might make existing Elder Law attorneys a bit nervous, my own research points to the very real need for more widely available, trustworthy legal advice. For example, Penn State Dickinson law students, with financial support of the Borchard Foundation's Center on Law and Aging, helped me to conduct focus groups drawn from a wide range of income, race, ethnicity and gender orientation, from locations all across Pennsylvania. In English and in Spanish, in inner cities and rural senior centers, we asked about their views and experiences with accessing legal assistance with Social Security, Medicare, Medicaid, insurance and other legal questions of concern to older persons. As summarized here, fear of the cost of seeing a lawyer, and the difficulty in finding free or affordable attorneys who were "trustworthy," were concerns clearly raised in each of the focus group sessions. That study pointed to the need for elder law specialists -- but not necessarily to a need for "just" Elder Law attorneys.
Big thanks go to Penn State Dickinson Professor Laurel Terry, our in-house guru on all things cutting edge in the practice of law, for sharing with me the latest materials on Washington's LLLT program.
CVS Caremark is drawing a lot of attention with the recent announcement of its decision to stop selling tobacco products in its drug store operations. Many, including the NYT and McKnights, are highlighting this decision as a pro-health measure, and certainly that should be true. News coverage of CVS suggests that other drug store chains are considering whether to adopt the same policy. But, the decision also highlights CVS' role in a major consumer trend; consumers are seeking what might be called retail health care at the corner drug store. This trend is arguably a move away from, or at least a major supplement to, a more traditional setting where a primary care physician's office is the access point for health care assessments. CVS' decision is part of its enhanced image as "health care provider."
I've been fascinated to see the popularity, especially among my parents' generation (in their 80s!), of using the "clinic" at the drug store to get complaint-specific treatment. Ease of access is certainly a major part of the appeal. I suspect that another factor is the decision of many trusted family physicians to retire. Indeed, my parents have now outlived the working lives of several sets of doctors.
At the same time, I worry about what might be missed when a customer uses the local drugstore "clinic" for a specific complaint -- and when those visits start to multiply. The pharmacy clinic does not have the decades of records that can help to explain a patient's symptoms and progress. Are there missed opportunities for whole person health care? And is the drug store clinic potentially "eager" to prescribe -- and sell -- drugs?
Wednesday, February 5, 2014
An important new book, Sexuality and Dementia: Compassionate & Practical Strategies for Dealing with Unexpected or Inappropriate Behaviors, published in December 2013, offers a physician's candid assessment of a topic often discussed, if at all, only in hushed tones.
Reading the first chapter called to mind a colleague in aging studies, a nurse, who related to me how a tearful woman once asked her how to hire a prostitute, as her husband was in the mid-stages of dementia and constantly wanted sex. The wife as the home caregiver was, in a word, exhausted. This book recognizes that a wide range of sexual behaviors often accompany dementia. Sexual agression is sometimes even a sign that something has changed in the individual's cognitive functioning, only later recognized as an early step in the process of dementia.
The author, Geriatric Neuropsychiatrist Douglas Wornell, is quite critical of the medical profession's approach -- or rather a frequent failure to even discuss -- the topic. Dr. Wornell observes that "to date, patients and their partners have been virtually abandoned by an entire medical system that has provided little to help them with sexuality as it relates to dementia. Considering the numbers of people affected -- tens of thousands of people in my practice alone -- that abandonment is nothing more than shocking."
The book is written in plain terms, covering everything from the "neurobiology of sex and dementia" to the potential for medication to stimulate -- or alleviate -- the condition, while also discussing the impact of the behaviors in the home and in more formal care settings.
Sunday, February 2, 2014
Global Atlas of Palliative Care at the End of Life
Published jointly by the World Health Organization and the Worldwide Palliative Care Alliance, the Atlas is the first document to map the need for and availability of palliative care globally.
Using maps, graphs and case studies, and drawing on a wealth of resources, the Atlas addresses the following questions:
What is palliative care?
Why is palliative care a human rights issue?
What are the main diseases requiring palliative care?
What is the need for palliative care?
What are the barriers to palliative care?
Where is palliative care currently available?
What are the models of palliative care worldwide?
What resources are devoted to palliative care?
What is the way forward?
This important document shines a light on the need for palliative care globally, and is an excellent tool to advocate for the inclusion of palliative care in the global, regional and national health agendas.
You can also help to raise awareness of the Atlas by downloading promotional materials here.
Thursday, January 30, 2014
Recently I received a communication from a professional agent, the head of a nonproft guardianship organization, and someone I have watched in action for eight years. He and his team of carefully supervised agents work on behalf of elderly clients, disabled persons, and family members to handle financial matters. They are paid modestly, on a sliding scale, based on the client's income or estate. Sometimes they are operating as the court-appointed guardians, while other times their authority was granted by the principal through a POA, often with the cooperation (and sometimes the gratitude) of the family.
This professional reported to me that they "are having increasingly difficult times using our authority for legitimate purposes, to the point where we have to subpoena information from banks as the guardian, because they will not accept our appointment." Further, he reports "some banks are not honoring our POA or are adding unreasonable burdens, not required by law, leaving us unable to assist an older person."
Here is an experienced agent, who is trying do the job as a fiduciary in a highly professional manner. On the other side of the aisle are banks and other financial institutions, who have become understandably "gun shy" because of increasingly high profile cases of "bad" agents -- often family or "friends" -- who have misused their authority.
Well, as you might guess, this very topic has generated a timely CLE program! "Dealing With Financial Institutions in Estates, Trusts and with POAs" is the title of a half-day program sponsored by the Pennsylvania Bar Institute that will take place at the following dates and times:
- Tuesday, February 4, 2014, from 9 to 1:15, in Philadelphia, PA
- Wednesday, February 26, 2014, from 9 to 1:15 in Pittsburgh, PA
- Monday, March 3, 2014, from 9 to 1:15, in Mechanicsburg PA
- Live Webcast on Monday, March 3, 2014 via webcasts.pbi.org
The program will focus on "bridging the divide" between financial institutions and agents, to help both sides better understand the powers and limitations conferred by law. In additional to "family" fact patterns, the program will offer insights into fiduciaries acting on behalf of business owners. The faculty include experienced lawyers representing financial institutions and individuals -- plus one of those pesky law professor types.
Pennsylvania, as is true in other states, has a number of potential changes in law pending at the state legislature, influenced in part by the Uniform Power of Attorney Act changes, first recommended for adoption by the states in 2006. The program will provide the lates updates and trends.
For more, including remote access to the live webcast, go to the Pennsylvania Bar Institute's webpage, here.
Wednesday, January 29, 2014
ABA Section on Dispute Resolution Spring Conference Features Session "New Options for Elders and Their Families: Dispute Resolution for High Conflict Cases,"
The ABA Section of Dispute Resolution will hold its Spring Conference April 2-5 in Miami. Details here.
One of the many conference events will be a session on "New Options for Elders and Their Families: Dispute Resolution for High Conflict Cases," on Thursday April 3 at 4:30 pm. The speakers and session description are below:
- Sue Bronson, New Prospects, Milwaukee, WI
- Linda Fieldstone, Lawson E. Thomas Courthouse Center, Miami, FL
- Siri Gottlieb, The Cooperative Parenting Center, Ann Arbor, MI
As the baby boomers age, the number of families that develop conflict over the care of an elder also increases. Using parenting coordination as a model, the Florida Chapter of AFCC has joined the Association of Conflict Resolution in the development of a dispute resolution option to address the high conflict in these cases. In an unprecedented effort involving over 20 Florida Statewide organizations and 25 national/Canadian organizations, this project fills a gap in ADR processes. It will help address the incoming influx of guardianship cases where conflict becomes the driving force of the family and mediation is unsuccessful.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, January 24, 2014
The Justice Department has announced the settlement of a Whistleblower case, involving allegations that RehabCare Group Inc., RehabCare Group East Inc. and Rehab Systems of Missouri, plus a management company, Health Systems Inc., violated the False Claims Act by engaging in a kickback scheme related to the referral of clients between nursing homes and therapy services.
Ho-hum. Just another settlement. No admissions of wrongdoing. Promises that they won't do in the future what they say they didn't do in the past. No reason to put another Whistleblower settlement affecting elder care services on the front page of any newspapers, or make it the lead story on the nightly news, right?
But hey, the settlement figure was $30 million dollars. Thirty ... Million ... Dollars. Are we so innured to Whistleblower cases in this country that an agreement to pay $30 million dollars is viewed merely as a cost of doing business? Do we simply accept it as an extra "tax" on the price of nursing home care -- or pharmaceutical drug sales -- or hospice care -- just to name three industries that have agreed to pay multi-millions in settlement of False Claim Act suits during the last year?
I suppose the Treasury is modestly pleased to be recovering payments to offset Medicare or Medicaid costs that are constantly under assault by legislators professing concern about the size of the budget devoted to elder care. The Justice Department says that in the last five years, it "has recovered more than $17.1 billion through False Claims Act cases, with more than $12.2 billion of that amount recovered in cases involving fraud against federal health care programs."
But what about the persons receiving the care? How do these these non-admissions of fault, combined with additional costs that surely must reappear in future billings to the public, affect the elders and disabled persons depending on these companies for care?
Wednesday, January 22, 2014
Last week I wrote about a dispute involving a gathering spot for elderly Koreans at a McDonald's restaurant in Flushing, New York. The owners were trying to eject the seniors, arguing that they weren't ordering food and had turned the seating into a defacto senior center that wasn't pleasing to other patrons. In response, supporters of the seniors were calling for a boycott.
On Sunday, communities leaders announced a settlement of the dispute, with the owner agreeing the seniors can stay as long they want, except from 11 a.m. to 3 p.m.
Stacy Torres, a PhD student at NYU, wrote an op-ed for the New York Times on the controversy, arguing we should encourage public-private partnerships that benefit older adults and businesses. She concludes: "Battles over public spaces are as old as the city itself, but we have an opportunity to reimagine overlooked resources like McDonald's as new generations of older people find themselves needing places to hang out."
Recently, a long-time friend, a successful business person, sent me a link to an Inc. article about an interesting course at the University of Chicago called "Entrepreneurial Selling." The course was taught in the Business School and the Inc. article included the course syllabus. My friend asked "should lawyers -- and by extension law students -- be taking this kind of course?" Reading the first line of the article made me shudder just a little, because it made the distinction between learning "how to sell," versus mere "marketing," especially for small businesses. But, the more I read, the more I was intrigued. My friend (a non-lawyer) argued that selling is the art of effective communication and lawyers are or should be all about effective communication.
That got me thinking, and I realized that some of the most effective "sellers" of law are Elder Law attorneys, who regularly engage with the public in social and business contexts, always with their eyes open for new relationships and new clients. As examples, I've witnessed (and participated in) an interesting variety of educational seminars for the public or other professionals that were sponsored by Elder Law firms or Elder Law attorneys.
Elder Law is still a relatively young (and evolving) field. Most members of the public have little understanding of what might be covered by the term. Indeed, two summers ago, a group of law students and I were sharply reminded of that fact while doing a state-wide research project with focus groups of older adults and their families, asking them to talk about access to trustworthy legal advice and information. We frequently encountered people who thought of Elder Law as "writing wills for old people," or similar amusing, if worrisome, definitions. Thus, "selling" the field is perhaps especially important and necessary.
But, of course, that leads to more questions. Is there an ethical model for "selling" a particular field of law, particularly a field that may not be well understood by the potential client base? Is so, what are the elements of that model?
What is necessary, for example, to avoid the Consumer Financial Protection Bureau's concerns about manipulation of potential clients, as addressed in an earlier post on this blog about investment products marketed to seniors? I'm tempted to say that one possible element of an ethical model would be to de-couple the educational programming from the client-retention meetings, but perhaps I'm being very naive, trapped in my ivory tower.
Silvia Hodges, who runs a blog subtitled The Legal Firm as a Business, recently published "I Didn't Go to Law School to Become a Salesperson -- The Development of Marketing in Law Firms." in the Georgetown Journal of Legal Ethics. She argues that "lawyers [often] mature in their professions without marketing training and therefore are ... ill-prepared to handle both the business and the professional part of their profession simultaneously." She refers to the problem as "market disorientation," where lawyers "consistently underrate the importance of clients' selection clues and criteria." She concludes that law firms "need to aspire to have marketing embedded in their firm culture, independent of whether the firm is a professional partnership or a managed professional business."
Perhaps the first step to that culture change should occur in law school, and thus "selling law" should also be addressed specifically in Elder Law classes.
Tuesday, January 21, 2014
Recently, a Pennsylvania friend was describing her aging father's situation in one of the sunshine states. When her father, a widower, began to show signs of diminishing capacity, the adult children discussed options, including moving Dad closer to one of them. But, he liked his retirement spot in the sunshine, had friends, and, in fact, there were more care options where he was living.
Eventually, my friend hired a local geriatric care manager in the sunshine state, with the cost shared by her and two siblings. In our most recent conversation, my friend described that decision as perhaps the best move the family made. She said that at first she had a hard time getting her father's facility to accept the fact that they should call the care manager first. But having an informed person -- an experienced advocate for her father -- in the community has often been essential, as questions arose over insurance, level of care, medications, transfers between facilities, nutrition and whether to hospitalize. My friend still makes regular trips to visit her father, but the local manager meant there were fewer emergency trips.
Geriatric care managers, sometimes called care coordinators, elder care coordinators, or professional care managers, could -- and perhaps should -- be an increasingly important part of planning. One of the questions about this emerging profession is credentials. At least two national trade groups exist, including the National Association for Professional Geriatric Care Managers (NAPGCM) and the National Academy of Certified Care Managers (NACCM).
In addition, law firms specializing in elder law frequently offer care management services, often employing non-lawyer professionals as part of the team.
Geriatric care management may be very important to "elder boomers," both as they become seniors caring for their even-more-senior-aged parents, and as future care-needing individuals themselves. Unfortunately, a big question may be cost. Medicare and Medicaid -- and most insurance -- does not cover the cost of care management. As reported by the New York Times a few years ago in "Care Coordination: Too Expensive for Medicare?," attempts to secure public funding for care managers has been stymied by studies that show care management does not necessarily reduce the costs of care.
Nonetheless, such coordination may be particularly important in a nation where family members often live far apart. In my friend's situation, she expected the need to last for a couple of years, but in fact, her father is approaching age 98, and the "healthy" relationship between the children, their father and his care coordinator has lasted for more than 10 years.
January 21, 2014 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
Recently I blogged about NORCs (for Naturally Recurring Retirement Communities) and Villages, two community-based models for aging in place that are popping up around the country, often in larger cities. Apparently the label "NORC" could also be applied to a not-so "natural" retirement setting -- your local McDonald's restaurant.
According to the New York Times, that's what's been happening in Flushing, New York, where a group of elderly Korean men and women have been gathering to socialize, starting as early as 5 a.m. and staying on well into the evening hours. The restaurant owners were not happy, especially as the size of the group increased and members weren't placing orders. Management eventually called the police, seeking removal of those who seemingly ignored posted time limits, requests to vacate or stronger language. Now politicians and television cameras are involved:
"Whether the Koreans, many in their 70s and 80s, were right or wrong to spend their days at the restaurant, arriving as early as 5 a.m. and paying as little as $1.09 for a cup of coffee during their daylong stays, seemed not to matter much to the small but vocal group protesting against McDonald’s before an assortment of television cameras and photographers. What seemed to nettle the Korean community most was the perception that in asking police officers to remove the group, the business had been rude."
The New York Times coverage of the on-going dispute seems to suggest that heritage and cultural traditions play a part in the "imbroglio," interviewing "Officer Hee-Jin Park-Dance from the Community Affairs Bureau of the Police Department [who] works out of Flushing. She said: “In Korea or any other Asian cultures, the elder is treated like gold. When you see an elder you get up, you give a seat right away. It’s a sign of respect.”
Thursday, January 16, 2014
Hayley is investigating DIY funerals. Who is Hayley? Of course, she's a character on the British night-time soap opera, Coronation Street (a/k/a "Corrie"), that's been running continuously in the U.K. since 1960. Hayley doesn't want to "waste good money on oak caskets and brass handles. "
Here's an essay from the Irish Times, inspired both by the fictional Corrie debate, and preferences expressed by the County Down author's real-life partner, including a discussion of an Irish tradition, the wake.
I especially like the line from the essay, "She was waked in her own home."
Thank you, Una Lynch, for sending the link from across the Atlantic!
Wednesday, January 15, 2014
The Journals of Gerontology (Psychological Sciences and Social Sciences - Series B) for January 2014 arrived on my desk this week. It is a special issue on widowhood and bereavement. An opening editorial by Sociology Professor Gary R. Lee (Bowling Green State University) provides an enticing introduction to "Current Research on Widowhood: Devastation and Human Resilience." He begins:
"As of 2010, there were more than 14 million widowed persons in the U.S. population -- nearly 3 million men and well more than 11 million women (U.S. Bureau of Census, 2012 Table 57). About 13% of men and about 40% of women aged 65 and older, and 57% of women aged 75 and older, are widows. This is, of course, just a single snapshot in time; nearly half of the population necessarily experience widowhood during their lifetimes. The only ways to of avoiding it are to never marry, to divorce and never remarry, or to predecease your spouse....
Over the years, I have noted with interest how many articles on widowhood begin with a citation to Holmes and Rahe (1967) to the effect that widowhood is perhaps the most distressing and difficult experience of people's lives.... But some close scrutiny and some nuanced qualifications may be needed."
After outlining the array of articles in the special issue, Lee concludes:
"We know much more about the consequences of widowhood now than we did when Holmes and Rahe (1967) made their of-cited observations about its devastating effects. It does more than just make people sad; it changes their lives in fundamental ways. But the real story here may lie in the search for the ways in which widows and widowers manage to cope with the loss of their spouses and adjust to the new realities they must face."
The table of contents for the issue is available here.