Friday, May 25, 2018
Of course, I'm supposed to be finishing my exam grading. Instead, while stopping by my office, I find a copy of a short story from one of my colleagues. The accompanying note says,"Not even my sci-fi 'escape' is untouched by elder care issues. Thought you'd get a kick out of this."
And indeed, I do. I definitely recommend "Today I Am Paul," by Martin L. Shoemaker. The author draws upon his personal experiences in visiting his mother-in-law in a nursing home to craft a true tale ... with a difference ... as the narrating caregiver is an android.
While my printed-page-loving self recommends reading the short story, I also found a great podcast of the story being read aloud by Kate Baker and I'm linking it here, from Clarkesworld Magazine.
I now plan to use this story to introduce my Elder Law course in the autumn. So much to talk about, including the roles of family, caregivers, technology, fear..... I suspect my co-blogger Becky Morgan, with her often expressed enthusiasm for tech including driverless cars, will appreciate this story too. Happy reading or listening for Memorial Day weekend!
Many thanks to Dickinson Law Professor Matthew Lawrence for this unique, caring experience.
Thursday, May 24, 2018
The "Senior Safe Act," part of a federal banking reform law that will modify Dodd-Frank, has been passed by both houses of Congress with bi-partisan support. Note the sometimes clever spelling for "Safe" as "$afe," used by proponents. From a McKnight's Senior Living report on May 23, 2018:
A bipartisan bill intended to help protect older adults from financial exploitation and fraud is on its way to the president's desk to be signed into law.
The Senior $afe Act, authored by U.S. Sens. Susan Collins (R-ME) and Claire McCaskill (D-MO), passed in the House of Representatives on Tuesday as part of a bipartisan banking reform package after previously being passed by the Senate in March. President Trump tweeted on Wednesday that he plans to sign the legislation into law.
Collins and McCaskill had introduced the Senior $afe Act in 2017 when they were chairman and ranking member, respectively, of the Senate Special Committee on Aging. Collins still leads the committee, and McCaskill remains a member.
The legislation protects banks, credit unions, investment advisers, broker-dealers, insurance companies and insurance agencies from being sued for reporting suspected exploitation or fraud as long as they have trained their employees about how to identify the warning signs of common scams and make reports in good faith to the proper authorities.
“The Senior $afe Act, based on Maine's innovative program, will empower and encourage our financial service representatives to identify warning signs of common scams and help prevent seniors from becoming victims,” Collins said in a statement.
I'll report more once I have a close look at the language, as enacted.
May 24, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, May 23, 2018
Both Becky and I have written about a California trial court's recent ruling that a California's law permitting physician assistance in death was enacted in an unconstitutional manner. The judge granted a window of five days before the ruling would become effective, to permit any appeal. That appeal has now been filed by the California Attorney General. From the Los Angeles Times:
California Atty. Gen. Xavier Becerra on Monday filed an appeal against a judge's recent ruling overturning the state's physician-assisted suicide law. . . .
Becerra's action Monday moves the case to an appeals court, which will decide the future of the law. He also asked that the law stay in place while the matter is further litigated, a request that will most likely be granted, said Kathryn Tucker, an attorney who heads the End of Life Liberty Project at UCSF/UC Hastings Consortium on Law, Science & Health Policy.
As Becky says, stay tuned. But probably best not to hold your breath while awaiting the next ruling.
Thursday, May 17, 2018
On May 15, 2018, a state judge issued a long-awaited ruling, concluding that the California Legislature violated the state constitution by enacting the state's End of Life Option Act that became effective in 2016 during a 2015 special session dedicated to healthcare issues. From the Los Angeles Times:
A Riverside County judge overturned California's physician-assisted suicide law on Tuesday, giving the state attorney general five days to file an appeal to keep the law in place.
California's law, which allows terminally ill patients to request lethal medications from their doctors, has been the subject of a fierce and emotional debate since it was approved in 2015. The state was the fifth in the nation to legalize the practice.
Superior Court Judge Daniel A. Ottolia said Tuesday that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law.
"We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."
In a statement emailed to The Times, California Atty. Gen. Xavier Becerra said: "We strongly disagree with this ruling and the state is seeking expedited review in the Court of Appeal."
Wednesday, May 16, 2018
Last Sunday, CBS' 60 Minutes ran an extended feature story on the role of grandparents as primary caregivers for grandchildren, often because of untrustworthy parents with opioid or other addiction problems. The story reported that "stoked by the opioid crisis, 21,000 children -- just in Utah -- live with their grandparents."
The feature also suggested some of the financial consequences for the extended family, as grandparents were exhausting their own retirement savings in order to provide for the younger children. Nonprofit programs, such as Grandfamilies, sometimes are able to provide informal support for the grandparents.
Along the same lines, Pennsylvania's Governor Wolf signed new laws, Senate Bill 844 (Printer's No. 1531), which became Act No. 21, on May 4, 2018. The law recognizes expanded standing for grandparents to seek physical or legal custody for grandchildren, if they can show "clear and convincing evidence" of all of the following:
(I) The individual has assumed or is willing to assume responsibility for the child.
(II) The individual has a sustained, substantial and sincere interest in the welfare of the child.
In determining whether the individual meets the requirements of this subparagh, the court may consider, among other factors, the nature, quality, extent and length of the involvement by the individual in the child's life.
(III) Neither parent has any form of care or control of the child.
Pennsylvania estimates that there are 82,000 grandparents acting as sole caregivers for roughly 89,000 grandchildren. Other related bills still pending in Pennsylvania include support for creation of a "Kinship Caregiver Navigation Program," and a means to appoint a temporary guardian when a parent enters drug or alcohol treatment.
Additional history on the shifts in thinking on grandparent rights can be important. For example see this Pennsylvania law firm's blog post from 2013 on amendments that removed "automatic" standing for grandparents to seek custody.
The Pennsylvania Bar Institute, responding swiftly to the latest changes, is offering a Webinar tomorrow (May 17, 2018) on the new laws.
Tuesday, May 15, 2018
Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session. I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July. The pending legislation includes:
- Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth. On April 16, 2018 this bill was referred to the Senate Appropriations Committee.
I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons. The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications.
- House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."
While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth. In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional. Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.
May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Monday, May 14, 2018
As reported by the New York Times, Japan is using mandated screening tools to remove older drivers who are identified as displaying signs of cognitive impairment:
Since 2009, all drivers 75 and older must submit to a test of their cognitive functioning when they renew their licenses, typically once every three years. Under a new traffic law that took effect in March 2017, those who score poorly are sent to a doctor for examination, and if they are found to have dementia, the police can revoke their licenses.
More than 33,000 drivers who took the cognitive test last year showed what the police deemed to be signs of cognitive impairment and were ordered to see a doctor. The police revoked just over 1,350 licenses after doctors diagnosed dementia.
For more, including photos of some of the screening tools, plus interesting demographic data about rural Japan, read Japan Moves to Ease Aging Drivers Out of Cars.
As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018. The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos. In-person training programs are also under development, on a county-by-county basis.
I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.
Nisa also provided links to the new Maryland Rules on mandatory training for guardians: Md. Rules 10-108, 10.205.1, and 10-304.1. In addition, these rules refer to Guidelines for Court-Appointed Guardians of the Person and Property. Thank you, Nisa!
The state of Washington also is developing a program for "lay/family (non-professional) guardians training."
County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.
Other states have also been active in establishing education and testing for prospective or current guardians. Several states' programs have been developed following allegations of improper appointments or lack of oversight. We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.
A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes described in legislation or court rules as "nonprofessional guardians." Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons. Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members.
The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules. As depicted on the map, some states have adopted CGC certifications as the state standard for approval of "professional" guardians. In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.
The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians.
You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.
Sunday, May 13, 2018
News publication sites affiliated with USA Today and the Associated Press have been running a recent piece on "bullying" among older persons, often with a provocative headline such as "It's like 'Mean Girls,' but everyone is 80": How nursing homes deal with bullies. The title undoubtedly catches many a reader's eye, simply because of the heightened discussions of bullying at a national level, including Melania Trump's recent announcement of her Be Best platform for younger persons. The topic isn't actually all that new from a journalism perspective. Paula Span wrote on "Mean Girls in Assisted Living" for the New York Times in 2011, and the same publication carried a granddaughter's Op Ed on "Mean Girls in the Retirement Home" in 2015.
On a parallel track, and perhaps more disturbing, are reports of bullying among nurses, a profession normally associated with empathy and caring. See e.g., "When 'Mean Girls' Wear Scrubs," a 2013 post on DiversityNursing Blog, tracking a several studies and a book.
More important than the clever headlines, however, are the reports of affirmative efforts to counter the bullying, which at the older end of the spectrum of life, seems to focus on name-calling, gossip, and ostracising behavior, rather than physical intimidation. From the most recent USA Today writer's article:
After the cafeteria exiles and karaoke brouhahas, the 30th Street [Senior] Center [in San Francisco] teamed up with a local nonprofit, the Institute on Aging, to develop an anti-bullying program. All staff members received 18 hours of training that included lessons on what constitutes bullying, causes of the problem and how to manage such conflicts. Seniors were then invited to similar classes, held in English and Spanish, teaching them to alert staff or intervene themselves if they witness bullying. Signs and even place mats around the center now declare it a “Bully Free Zone.”. . .
Robin Bonifas, a social work professor at Arizona State University and author of the book “Bullying Among Older Adults: How to Recognize and Address an Unseen Epidemic,” said existing studies suggest about 1 in 5 seniors encounters bullying. She sees it as an outgrowth of frustrations characteristic in communal settings, as well a reflection of issues unique to getting older. Many elderly see their independence and sense of control disappear and, for some, becoming a bully can feel like regaining some of that lost power.
I think that last line rings true. I've certainly seen older adults sudden strike a "meaner" demeanor as their freedom is limited by physical health issues and as their frustrations increase. But I also think it can be important to assess whether a "mean" trait -- or at least a "meaner" dynamic -- is a reflection of cognitive impairment, such as disinhibition associated with certain types of neurocognitive impairments.
On an even more worrisome level, is there a danger of misinterpreting fear or irritation as "meanness," perhaps arising from compelled interactions in a congregated living situation? In one instance, I've seen an older woman who had regularly chose to sit with the same group of 3 other individuals at meals for several weeks, suddenly reject one member of their informal club. It took careful listening to realize the rejection was actually uneasiness bordering on fear -- on some level not completely rational -- but associated with that targeted individual's tendency to wander at night into others' rooms and thus to lead the "mean girl" to try to keep the other away from her around the clock. Targeting the "bullying" behavior could be addressing the wrong problem in the latter case.
Finally, I think there is a danger associated with the admittedly clever tendency to use the "Mean Girls" movie as the analogy for older bullying, thus implying this is only an issue (and problem) associated with women, not men. As a later paragraph in the most recent article makes clear, bullying behavior among older adults is not "just" about women. But perhaps that is obvious from the larger national news?
May 13, 2018 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Retirement | Permalink | Comments (0)
Tuesday, May 8, 2018
According to news reports coming out of Louisiana, the state's Department of Health will begin sending "eviction" notices to nursing home residents later this week. This strikes me as a particularly abusive form of gamesmanship connected to state budget negotiations. See what you think!
Louisiana's Department of Health will begin sending nursing home eviction notices Thursday to more than 30,000 residents who could lose Medicaid under the budget passed by the state House of Representatives.
"The Louisiana Department of Health is beginning the process of notifying all impacted enrollees that some people may lose their Medicaid eligibility," Department of Health spokesman Bob Johannessen said. "The goal of the department is to give notice to all affected people as soon as possible in order that they begin developing their appropriate plans."
Gov. John Bel Edwards' staff has planned a press conference Wednesday for more details, a day before the notices are set to be mailed to 37,000 Medicaid recipients in nursing homes or other long-term care facilities.
"(The Department of Health) told us they're sending out the letters May 10," said Mark Berger, executive director of the Louisiana Nursing Home Association, during testimony at the Senate Finance Committee meeting Monday.
The issue was front and center in Senate Finance, which was hearing public testimony on the budget sent to it by the House for most of the eight hours the panel met.
"This sounds like mass chaos," said Sen. Regina Barrow, D-Baton Rouge, who called the letter notification "very troublesome."
For more see the Monroe New Star Report on "Nursing Home Eviction Notices to be Sent Tuesday."
Most commentaries on funding for retirement years point to insufficiency of savings or other resources. But here's a different take, drawing upon a recently published report from the Employee Benefit Research Institute (EBRI) that suggests retirees with significant savings are often exercising restraint in spending, From the St. Louis Post-Dispatch on The Myth of Outliving Your Retirement Savings:
In the EBRI study, those with the most savings — a median of $857,450 shortly after retiring — still had $756,300 two decades later. The decrease amounts to just 11.8 percent of the original sum.
The largest drop in retirement nest eggs, 24.4 percent, was among those with the least savings, or a median of $29,975.
Frugal behavior is consistent with research led by Anna Rappaport for the Society of Actuaries. She and her team found that most people do not plan for retirement or know what they should spend, but they adapt — even when shocked by high dental bills or a roof repair.
What can devastate financially are divorce, caring for a mentally or physically ill adult child who cannot work, and long-term care expenses, according to the actuarial society’s research.
Still, debilitating health care costs are far more rare than people fear, according to the EBRI research. Half of retirees face no nursing home expenses because Medicare covers short recoveries after hospital stays and Medicaid can help when resources run out.
The medical annual out-of-pocket spending for 90 percent of retirees is just $2,000, and the big nursing home costs over $87,000 hit only 10 percent of people living longer than 95, according to the EBRI study.
For the EBRI study itself, see the April 2018 report on Asset Decumulation or Asset Preservation? What Guides Retirement Spending?
Monday, May 7, 2018
A coalition of Wisconsin health care organizations is warning that the state's shortage of long-term care providers continues to grow.
The study, put together by several groups across the state, says 1 in 5 direct caregiver positions in the state is going unfilled. That's up from 1 in 7 positions in 2016.
Starting wages in the profession are so low that many potential workers never apply, according to the report. The median hourly starting wage for personal caregivers is $10.75 an hour, according to the study, while other positions outside health care start at $12 an hour.
The report found Wisconsin's low rate of Medicaid reimbursement is a key factor keeping provider wages low.
Sarah Bass of the Wisconsin Assisted Living Association said with so many unfilled positions, many facilities are cutting back, even though demand for long-term care continues to grow.
"Assisted living providers are closing their doors, or shutting down areas of their assisted living facilities, because they don't have the staff to safely take care of the residents," she said. "They're reducing their admissions."
These problems exist despite some increases in state funding for skilled care and family care workers in the latest budget.
May 7, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, May 6, 2018
As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts. In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based "orientation program" before they are appointed guardian of a minor or disabled person. The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts. Here is a link to the video.
What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court. I think that many courts are still struggling with their own roles in this regard, but here the lines of responsibility are explained clearly.
The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but without making the information so overwhelming that good candidates decline the role. The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights.
In my opinion, this type of video is a good first step. But just a first step.
May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)
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.
Thursday, May 3, 2018
Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania. It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing. On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption." Doesn't that title capture the mood of the country?!
Practical workshops include:
- Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
- Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
- Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
- Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
- Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
- Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
- Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
- Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis
Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues). Registration is here.
May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Frequent reader Karen Miller from Florida made a timely catch by sending me two articles that both mention the "peace of mind" that can accompany living in purpose-planned retirement communities, including CCRCs or LPCs. Thanks, Karen!
In last Sunday's edition of the New York Times, reporter Peter Finch offered "How to Talk About Moving to a Retirement Home: It's a Journey." He includes admissions by once highly reluctant residents, including one who finally gave in to his wife's desire for a new setting:
For the once-skeptical Mr. Strumsky, it took only days for him to start feeling certain that he and his wife, who is 72, had made the right decision. About a week after moving in at Charlestown [a retirement community outside of Baltimore], he went out to walk the dog at night and ran into a pair of women he didn’t know who were chatting amiably in the parking lot. About 25 minutes later, he returned home and saw the same women, still talking.
“They were so unconcerned about their personal safety, they were oblivious to anything going on around them,” Mr. Strumsky said. “And it just hit me: I really wished my mother or my sister or my aunt could have had this experience, to feel that safe and secure. At that point, it was like a light bulb going on. It was an instant turnaround for me.”
By contrast, Patricia Hunt, a columnist for the News Leader (part of the USA Today Network), writes about "friends whining about the rules of their . . . subdivision," noting that the security that some people seek can come with a regulatory price tag, even if the regulator isn't the government. She writes in part:
In retirement many people with the means to do so choose a “continuing care retirement community.” There is a big price range, but basically you pay an entrance fee, and most require that you be well enough to live independently to be admitted. They provide food service, activities, and stepped up sections for “assisted living” and for the most debilitated, “skilled nursing care.” This is the most expensive option for one’s last years.
But the rules for the residents of CCRCs are set entirely by people who do not live in them. And flexibility is the most restricted of all options. If you grandson who ran away to join the circus can be talked into living with you for a few months until he can sort things out with his parents, you cannot let him do that. If you decline in health and your granddaughter is willing to come live with you so you don’t to go to assisted living or skilled nursing care, you can’t do that either. You can hire people to come in night and day, but your family member cannot simply move in. She must have another permanent address. At least this is how most of them work.
If you[r] adult child gets sick or loses a job and needs to stay with you, it is not allowed. And you may not have the money to help him or her out if you have spent it all on the entrance fee and monthly fees.
Hunt concludes by questioning whether people "really" do hate regulation, noting "there is plenty of evidence of that some of them are not only willing to live with more regulations than many other people, they are willing to pay a lot of money to do so."
For more from Hunt, read the full column "We Hate Regulation, But We Willingly Trade Away Our Basic Freedoms for Comfort, Security."
May 3, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, May 2, 2018
I'm often hesitant to post photos or videos from allegations about nursing home neglect. As an outsider, it can be hard to know the full facts. However, I think that one story about litigation that follows the 2015 death of a 95 year-old woman (reportedly a resident in a Georgia nursing home for some 4 years) from alleged complications associated with scabies, raises important questions from several perspectives. The questions include the roles of companies and individuals, including family members and caregivers, and about the state in its regulatory role.
Scabies, by the way, is a parasitic infection. Some of the news articles include copies of court pleadings. The facility denies all allegations of fault. Here is a television news clip that presents several key questions. Plus a word of caution, as the clip includes graphic details:
May 2, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 1, 2018
My thanks to Dickinson Law Professor Laurel Terry for pointing us to an upcoming seminar offered by the American Bar Association on "Competency and Cognitive Decline in the Legal Profession: Ethical Pitfalls Encountered by Lawyers with Diminished Capacity," on May 9, 2018, from 1 to 2:30 p.m. (ET).
The promotional materials are a bit lean, but discussion topics are described as follows:
- Understanding the effects of aging on the human brain
- How to recognize some of the signs of diminished capacity
- The practical and ethical considerations for intervention
- Advice on how to facilitate discussion with the impaired person (or others who can help)
- Resources and ways to locate assistance in your area
- The importance of succession planning, and resources to help you develop or review your own succession plans
The speakers include Dr. Doris Gunderson, a psychiatrist in Colorado.
Co-sponsors of the program including the ABA Center for Professional Responsibility, its Commission on Law and Aging, the Commission on Lawyer Assistance Programs, the Section for Civil Rights and Social Justice, the Senior Lawyers Division, and the Solo, Small Firm and General Practice Division.
For more information on registering, see here.
Monday, April 30, 2018
I'm always interested in articles about the use -- misuse? -- of antipsychotic medications for older adults. Therefore I was eager to read the recent post on the Health Affairs Blog by David Introcaso entitled The Never-Ending Misuse of Antipscyhotics in Nursing Homes. The article begins:
In response to a generic question about post-market drug surveillance posed during a February 2007 House Energy and Commerce Committee hearing, Dr. David Graham, then associate director of science and medicine in the Food and Drug Administration’s (FDA’s) Office of Surveillance and Epidemiology, stated: “I would pay careful attention to antipsychotic medications. … The problem with these drugs are that we know that they are being used extensively off label in nursing homes to sedate elderly patients with dementia … . It is known that the drugs don’t work in those settings. … But the fact is, is that it increases mortality perhaps by 100 percent. It doubles mortality. So I did a back-of-the-envelope calculation on this and you probably got 15,000 elderly people in nursing homes dying each year from the off-label use of antipsychotic medications for an indication that FDA knows the drug doesn’t work. This problem has been known to FDA for years and years and years.”
I've highlighted in bold the words that are the focus of my interest: "It is known that the [antipsychotic] drugs don't work in those settings." No citation to authority here - and it is the authority for this statement that I would like to see. Is there a study of the use of antipsychotic drugs showing they "don't work" for dementia patients? What does it mean "not" to work? Is all "use" a "misuse" for patients who "only" have dementia?
I ask because I saw my father struggle at home for several years with dementia. As the disease robbed him of the ability to understand where he was and why he couldn't remember things, he sometimes became aggressive. He was still very strong. His doctor tried various mild anti-anxiety drugs, but they seemed to interact with his blood pressure issues (and perhaps his other medications). He would sometimes swing between aggressive behavior and losing consciousness. Finally his doctor suggested a very small dose of an antipsychotic. My mother was desperate for help at the time -- and thus, Dad started on the drug. This is an example of "off label" use. I was worried, and said so, because I knew the associated concerns about increased mortality for those with dementia. I looked for specific studies of risk versus benefit and frankly, all I could find were records showing the ratio of deaths for individuals with dementia who also were taking an antipsychotic drug. Mere correlation is not necessarily evidence of causation. What I was looking for was a careful study of risk versus benefit.
Over time I saw that the small dose did "work" for this one individual, my father. He wasn't "knocked out." He wasn't "docile." He wasn't "asleep all the time" -- typical of the accusations that are often made about misuse of antipsychotics. What we did see was that he was much less likely to strike out an arm or push someone hard when he was frustrated (and yes, he was still frustrated). The small dose did not interfere with his blood pressure or the other medications he was taking. Perhaps most importantly, he continued to live at home for many more months. Eventually it was appropriate to wean him off the antipsychotic altogether.
One anecdotal account is not evidence. But the fact that there reportedly continues to be "widespread"use of antipsychotic drugs by the elderly means there could be some very real need for safe, effective alternatives. Behavioral health approaches are important, but those too can have limits in effectiveness. I'd certainly like there to be "good" studies of the use of these drugs and any drug that might be able to help a person suffering from dementia live a less tormented life. Not zoned out and not asleep all the time, but also not likely to harm themselves or those who on a daily basis are trying to help them live as normally as possible.
Thursday, April 26, 2018
In Continuing Care or Life Plan Communities, Do Operators Face Liability for "Failing" to Transfer Residents to Higher Levels of Care?
Just as spring is finally seeming to arrive in the Mid-Atlantic region and I'm catching up on non-classroom projects, I realized I hadn't fully understood the potential legal issues in a tragic fact pattern from last winter, when an 85 year old women died after being trapped overnight outside her home near Philadelphia in March. The legal issues are outlined in a suit filed against the CCRC where she was living in an "independent living" unit. The lawsuit claims her "caregivers should have known" that she needed more care, pointing to the contractual language that permitted the facility to assess and transfer her to a more supervised setting as her care needs increased. From the Philadelphia Inquirer on February 9, 2018 :
Her son, Blake Rowe, a drug company scientist, has filed suit against Shannondell at Valley Forge in Audubon and its security company, Universal Protection Service LLC, claiming that they should have done more to protect his mother. She had been allowed to stay in an independent-living apartment after Shannondell knew she had a tendency to become confused and wander aimlessly, the suit says.
“I put my trust in them. They said they would do an assessment they never did,” said Rowe, who got the “horrible” news that his mother was in the hospital as his plane landed in Florida for his honeymoon. As for the security company, he said, “If they were doing their rounds, someone would not be at a door for five hours freezing to death.”
Ironically, I often hear from family members protesting the compelled transition of a resident to a higher level of care, as the family members may disagree more help is needed, or feel the help can be provided adequately "in" the independent living unit. The Inquirer article summarizes the dilemma for operators and families:
The Hinds case also illustrates a trend in senior housing — at all levels of care, including independent living, residents are older and have more health problems than in the past — with safety implications that may surprise families. Most seniors want to be as independent as they can for as long as they can. Families shopping for senior apartments may want to look beyond the quality of the food or beauty of the grounds and ask what will happen when a loved one declines: Were your buildings and security designed with dementia in mind? Whose job is it — the family’s or the facility’s — to start the conversation when a resident needs more help?
For more on the "Hinds" case, see His Elderly Mother Wandered Out Into the Cold and Died. Whose Fault Was It?
April 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)