Thursday, February 11, 2016
The Washington Post's Tara Bahrampour has a very thoughtful article this month focusing on a common fact pattern. One family member asks -- or another family promises -- that "a nursing home" will never be utilized for care needs. While fear may be driving the request, guilt and strong feelings of moral obligations may be driving the promise. Both sides, however, may need more information to make the best decision:
For many, the idea of being sent to a facility implies abandonment. Older Americans remember the poorhouse , where the old and infirm were hidden away to die. But many younger people also are repelled by the idea.
There’s now a wider spectrum of facilities catering to different levels of need, but even the best ones can feel institutional. Daily life is often rigidly regulated, robbing residents of autonomy, and the familiar faces and spaces of a person’s life are gone....
A couple of generations ago, families were more likely to care for their parents at home — but people didn’t live as long. Thanks to modern medicine, even those with devastating illnesses such as Alzheimer’s can live many years past their diagnoses. But caring for them at home becomes increasingly difficult as cognition and self-care skills worsen. Safety, of the patients and of other family members, can also become a factor.
Ultimately, as geriatrician Bill Thomas explains for the article, instead of "red herring" promises that may be impossible to keep, everyone could benefit if there were stronger advocates, including families, demanding more of the nation's long-term care industry:
"The nursing home industry has, ironically, benefited tremendously from the low expectations people have,” Thomas said. “They have successfully persuaded people that you’ve got no other choice — it’s got to be cold and sterile and rigid.”
As some family members explain, they have learned the more important promise is to keep caring, regardless of the better "place" for care. For the full piece, read "Promise You'll Never Put Me In A Nursing Home."
Special thanks to George Washington Law Professor Naomi Cahn for sharing this article.
Wednesday, February 10, 2016
Elderlawprof blog founder, elderlaw prof extraordinaire and renaissance woman, Professor Kim Dayton sent the following article Nursing homes free to hire applicants with criminal histories; Pennsylvania won't appeal decision striking down law . According to the article, the state has decided not to appeal a decision striking a Pennsylvania law that "prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories." The article explains that the law contained a lifetime employment ban in the state's APS statute. Part of the challenge to the law is that the statute didn't differentiate between the types of crimes, circumstances or even when the crime was committed, so something minor or a crime committed decades ago would count in imposing the lifetime ban.
The opinion is available here.
Sunday, February 7, 2016
The Senate Special Committee on Aging has a meeting scheduled for 2:30 p.m., est on February 10, 2016. The topic of this meeting is "to examine a new scam by global drug traffickers perpetrated against our nation's seniors." Stay tuned for more information
Friday, February 5, 2016
My friend and mentor Jeffrey Marshall, a/k/a ElderLawGuy on Twitter, once again uses practical experiences to illustrate how "planning in advance" for the possibility of emergencies makes sense, particularly as our loved ones age. He tracks the aftermath of an always dreaded "fall," an event in the life of an older person that too often can precipitate a downward spiral in the absence of a holistic care plan plan:
[M]y wife and I were thousands of miles away. How could we get her the immediate help that she needed?
Fortunately, the help was available. My wife and I had previously hired a professional care manager, Bonnie, in the town where gramma lives. As soon as we got the call from the emergency room we contacted Bonnie and filled her in. She swung into action at once. She visited gramma and evaluated her condition. She implemented a system of caregivers to stay with gramma. She set up a Monday morning appointment with gramma’s physician, attended it with her, and reported back to the family.
Bonnie served as the family’s eyes and ears and local expert and was able to ensure that gramma got the care and support she needed when she needed it.
For more details, read Jeff's blog post, "Caring for Mom when you are far away." I know that in my own family, who also lives far apart, over the course of my regular visits home I probably visited 10 different care providers with my mother or sister. This was during the year before we actually made the decision for my father. I kept saying "we can make these decisions without an emergency." It became my mantra. Not every emergency needs to be an emergency....
Thursday, February 4, 2016
My colleague Laurel Terry sent a link to this week's New York Times article that delves into the topic of "healthy aging." Thank you! While I can see "healthy aging"as a goal, I have to admit I had not thought carefully about what we mean with those words. Jane Brody's article, Finding a Drug for Healthy Aging, helps to explain, while also examining the latest push for medications that might serve the goal:
In 1980, Dr. James F. Fries, a Stanford University physician who studied chronic disease and aging, proposed that a “compression of morbidity” would enable most people to remain healthy until a certain age, perhaps 85, then die naturally or after only a brief illness.
Now, a group of experts on aging envisions a route to realizing Dr. Fries’s proposal: one or more drugs that can slow the rate of aging and the development of the costly, debilitating chronic ailments that typically accompany it. If successful, not only would their approach make healthy longevity a reality for many more people, but it could also save money. They say that even a 20 percent cut in how fast people age could save more than $7 trillion over the next half-century in the United States alone.
“Aging is by far the best predictor of whether people will develop a chronic disease like atherosclerotic heart disease, stroke, cancer, dementia or osteoarthritis,” Dr. James L. Kirkland, director of the Kogod Center on Aging at the Mayo Clinic, said in an interview. “Aging way outstrips all other risk factors.”
The practitioners of this field of study even have a name, geroscientists, "university scientists joined together by the American Federation of Aging Research to promote a new approach to healthier aging...."
Tuesday, February 2, 2016
Challenge to Attorney General's "Outsourcing" of Consumer Protection Suits Against Nursing Homes Fails in PA
In GGNSC v. Kane, decided January 11, 2016, the Pennsylvania Commonwealth Court rejected a challenge by owners and operators of long-term care facilities to the use of a private law firm to investigate and pursue claims based on alleged improper billing, contracting and marketing practices. The ruling was 6 to 1, with the lone dissenting judge not filing an opinion.
In the challenge, begun as a declaratory judgment action, the Facilities contended the investigations were "not based on any material consumer complaints," but were instead based on efforts by the law firm (Cohen Milstein) to generate lawsuits in Pennsylvania and other states. In Pennsylvania, beginning in 2012, the Pennsylvania Office of Attorney General signed a contingent fee agreements with the Cohen Milstein law firm, which has a history of pursuing class action suits in business and consumer protection areas. The Court permitted the Pennsylvania Health Care Association, a trade group for some 450 long-term care providers in the state, to join the Facilities' challenge as a petitioner.
In July 2015, the Facilities' challenge was "overtaken" by a Consumer Protection Law enforcement lawsuit filed by the Pennsylvania AG against two GGNSC facilities and 12 Golden Living nursing homes. Cohen Milstein was listed as counsel representing the State. Some of the Facilities' original arguments for blocking the Cohen Milstein investigatory actions became moot after the consumer protection suit was filed or could be addressed in the enforcement suit, according to the Commonwealth Court decision. (Other states have also contracted with Cohen Milstein to bring nursing home cases, including New Mexico.)
However, the Facilities continued to argue that only the Pennsylvania Department of Health (DOH) had "authority" to investigate or pursue litigation regarding quality of care. The Commonwealth Court disagreed:
Any investigation or enforcement action initiated by OAG is directly related to "unfair or deceptive acts or practices" purportedly committed by the Facilities with respect to the staffing levels at their facilities. As a result, while minimum staffing levels may be regulated by DOH for health and safety purposes, any representations, advertisements or agreements that the Facilities made with their residents with respect to staffing levels, whether in accord with those required by statute or regulation or not, may properly be enforced by OAG through its authority conferred by the Administrative Code and the Consumer Protection Law. Such action is proper under the foregoing statutes and does not constitute any impermissible administrative rulemaking regardless of whatever evidence OAG uses to establish a violation, including any type of staffing model. What OAG is seeking to enforce is the level of staffing that the Facilities either represented, advertised, or promised to provide to their residents and not what level OAG deems to be appropriate for the care of such residents.
Further, the Commonwealth Court ruled the Facilities "lacked standing" to challenge the OAG's use of a private law firm to investigate or prosecute the claims under the Administrative Code or the Consumer Protection Law, citing the Pennsylvania Supreme Court's similar ruling in Commonwealth v. Janssen Pharmaceutica, Inc. in 2010, a suit about alleged off-label drug prescriptions, pursued with the assistance of contracted outside counsel.
The outsourcing of state claims for consumer protection suits raises interesting issues. Such financial arrangements with outside law firms may be especially attractive to states in terms of risk/reward potentials, as the private firms typically agree to fund all or a portion of litigation costs for the class-action-like suits, with lower contingent fee percentages (10 to 20%) than you would see when such a firm handles suits on behalf of private plaintiffs. The option could be attractive to financially-strapped states or "embattled" state prosecutors such as the Pennsylvania AG.
Companies, particularly health care companies, have organized efforts to resist what they see as "abusive" lawsuits generated by private law firms. As one industry-focused report argues here, private firms lack a proper "public" perspective, failing to take into account the impact on business development, while also arm-twisting companies to extract settlements, arguing this comes at a high-dollar cost to the state's residents.
Monday, February 1, 2016
Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?" For many years, I would get a blank stare or, perhaps, "what exactly is elder law?" Now, more frequently the response is "do you have time for a quick question?" (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....")
I'm hearing more questions about home care workers. One frequent question is about overtime pay, and the type of employment definitely matters. The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.
Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight. Family members will tell me "we just want someone there in case something happens." That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services. There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.
In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation. See Home Care Association of America v. Weil. Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.
As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection." "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)
DOL provides this example:
Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.
For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city!
Thursday, January 28, 2016
Earlier this month, CMS published a CMCS information bulletin with the subject, Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes . This is a re-release of the informational bulletin originally published in early July of 2014. Why? Because this informational bulletin is intended
to assist states in understanding how they may ament their current 1915(c) waivers and state plan (1905(a), 1915(i), 1915(j), and 1915(k)) personal care services to implement Fair Labor Standards Act (FLSA) changes in a timely way, and in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time during the workday that are likely compensable as the result of the DOL home care final rule.
CMS stands ready to help by providing "technical assistance to states seeking to adjust Medicaid reimbursement and other program policies to appropriately support FLSA compliance in home and community based LTSS. Additionally, DOL is continuing to provide extensive, individualized technical assistance." The focus of the bulletin is on home-care services that are use "self-directed service options" but the bulletin also notes "that FLSA implications also exist for services furnished through agency-delivered models."
Tuesday, January 26, 2016
Mother Jones, in the January/February 2016 issue, ran a story, My Right to Die: Assisted Suicide, My Family, and Me by Kevin Drum. This story starts with a personalized account of an individual who was terminally ill but didn't have the option of physician-aided dying. The story provides an in-depth look at the laws of physician-aided dying and the arguments, both for and against. The article then becomes even more personal when the author reveals his diagnosis of cancer for which there is no cure. He reviews his options for the future and remarks that the California law on physician-aided dying now provides an option he didn't have until the law was signed.
The author speculates: is "assisted suicide is the next big civil rights battle? The fact that four states have approved assisted suicide in just the past seven years suggests momentum may finally be reaching critical mass. What's more, if Gallup's polling is to be believed, the word "suicide" has finally lost its shock value. Still, legislation continues to fail more often than it passes, even in blue states like Massachusetts and Connecticut. Right now, it's just too early to tell." The article can serve as a good foundation for a classroom discussion.
Monday, January 25, 2016
Earlier this month I read an article about the role of brain inflammation in Alzheimer's. Scientists May Have Just Discovered the Key to Halting Alzheimer's was published on January 11, 2016 in Huffington Post Science. "Researchers at the University of Southampton in England conducted a series of experiments showing a chemical that reduces neuroinflammation may have the potential to protect against the memory and behavioral changes associated with the disease that affects roughly 5.3 million Americans." The article explains the research and notes that "[a]n overactive immune system can result in chronic inflammation, which previous research has linked to Alzheimer's. These new findings makes it increasingly apparent that inflammation is not a result of Alzheimer's as much as a key driver of the disease." Further research will be taking place. Exciting!
Sunday, January 24, 2016
It seems that no matter the season, there is some type of natural disaster that occurs (example-tornados the week before last in Florida, a major snow storm in the Northeast a few days ago). We all need to be prepared for natural disasters, and it is important to realize that elders may be disproportionally affected in some cases. The New York Times on January 8, 2016 ran an article on the importance of being prepared. "Natural disasters, which appear to be on the rise in part because of climate change, are especially hard for older adults. They are particularly vulnerable because many have chronic illnesses that are worsened during the heat of a fire or the high water of a flood. And many are understandably reluctant to leave homes that hold so much history." The article references studies that reveal a disproportionate number of some natural disasters have been elders.
One key to survival, as the article notes, is advance planning. A number of resources, state specific or national, are available online to help prepare. Every year in Florida, the media alerts us to the approach of hurricane season and we purchase our hurricane supplies and prepare. Friends in California have told me about their earthquake kits. The article notes that local governments may have registries for those with special needs or may need assistance in an evacuation. Preparing in advance for shelter for pets in emergency evacuations is important, since not all emergency shelters take 4-footed family members. The article notes there is even an app for help when disaster strikes!
The article has some good ideas that are valuable to all of us. Here are just a few of my favorite websites for information.
Red Cross Disaster Preparedness for Seniors by Seniors.
Thursday, January 21, 2016
I spent the first week of 2016 in Cuba with Dickinson Law students -- and it was an energizing experience (even as I fear I will never catch up on my other responsibilities this semester!). The students' studies in Cuba were wide-ranging, with opportunities to engage with experienced legal professionals while discussing historic principles and modern plans for Cuba, including a close look at laws adopted just in the last two years that will affect economic development, international investment in Cuba, employment, property ownership and taxes. For a full report on the course coverage and special events (including great photos by the students), see "Experience Beyond the Classroom Proves Invaluable."
For me, it especially interesting to hear directly about Cuba's health care system, which is highly regarded throughout the world, especially for its success in primary care for pregnant women. From Dr. Yoandra Adelá (depicted left) we learned core principles that guide Cuba's plans for health care, including a goal of universal coverage, free and equally accessible to all Cubans.
Our professors freely admitted challenges that Cuba faces in trying to meet health care goals in a struggling economy, with international partners important in order for Cuba to maintain access to medicines, technology and even credit needed to improve buildings and make necessary repairs at treatment sites.
Since 1985, Cuba has recognized a medical specialization in "comprehensive care" -- which emphasizes preventative medicine and community-based contacts. We saw this in action, where doctors from a local polyclinic spend half of their appointment days meeting patients in the office and half of those days seeing patients in their homes. We learned that for the elderly, many of the problems addressed by Cuban health care professionals mirror what is seen in the U.S., with hypertension and diabetes being significant health care risks; on the other hand, Cuba reports low incidence of infectious disease in their population.
I still need to learn more -- especially as I did not have time to fully explore "elder care," which reportedly includes some 380 hogares de ancianos and casas de abuelos, in addition to primary care offices that specialize in geriatric medicine. To the right is Corey Kysor, one of our law students visiting a Havana area polyclinic, the middle level of three components of health care available to all Cubans. (And yes, our law school does plan to return to Cuba in the next academic year to offer additional opportunities for comparative legal studies.)
If you would like to read more, from the perspective of a law student who had already experienced foreign legal systems such as China before traveling for her first time to Cuba this January, read Joy Lee's "Inside Cuban Law and Culture: A Law Student's Perspective."
Wednesday, January 20, 2016
The January 19, 2016 issue of the Journal of the American Medical Association (JAMA) is a theme issue on Death, Dying and End of Life. There are 15 articles and opinion pieces on a range of topics, including several on physician-aided dying, as well as an audio of the editors' summary. Check it out!
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, January 14, 2016
How close do you live to your mom? If you are within 20 minutes, then you are a typical American. The New York Times ran a story on December 23, 2015 that discusses how many miles away adult kids live from their moms. The Typical American Lives Only 18 Miles From Mom explains that "[t]he typical adult lives only 18 miles from his or her mother, according to an Upshot analysis of data from a comprehensive survey of older Americans. Over the last few decades, Americans have become less mobile, and most adults – especially those with less education or lower incomes — do not venture far from their hometowns." The article discusses the importance of physical proximity of families when an elder needs caregiving. "Over all, the median distance Americans live from their mother is 18 miles, and only 20 percent live more than a couple hours’ drive from their parents. (Researchers often study the distance from mothers because they are more likely to be caregivers and to live longer than men.)"
The article discusses the factors that impact the distance the kids live from mom, including education, geographic location, marital status and culture. The article notes that caregiving goes both ways, with elders providing child care for their grandchildren. The article also covers the challenges of caregiving, and the future needs for caregiving.
Wednesday, January 13, 2016
My Blogging colleague Becky Morgan suggested that our faculty readers share hot topics or videos they are using in Elder Law courses. Along that line, I'm using an excerpt from a Dateline NBC program (archived in part by NBC, although special arrangements appear to be required for copies) from several years ago, that provides a dramatic introduction to a number of age-related legal issues.
The program tells the story of Dr. Gerald Klooster and his family. In 1995, friends of the family became concerned when they learned that Dr. Klooster, once a practicing obstetrician in California who was forced to retire early from his practice as the result of a diagnosis of Alzheimer's, had an appointment with his wife to meet with Dr. Kevorkian, of "assisted suicide" fame. One son, also a physician, became so concerned that he made the decision to whisk away his father to the son's own state of Michigan, for safeguarding. That triggered a two-state custody battle, initially resulting in inconsistent court rulings. Eventually, however, Dr. Klooster was returned to California where he resumed living with his wife, Ruth, and regularly saw his other children and grandchildren. The NBC program shows Gerald swimming and interacting with his family members.
One night, however, emergency personnel were summoned to the Klooster home, when it was learned that Gerald had ingested as many as 60 sleeping pills and alcohol in the middle of the night. Ruth is the one who called the emergency personnel, but then also reportedly directed them not to provide certain life-saving treatments. She was relying on her husband's pre-dementia living will.
Gerald Klooster did survive, and the NBC program provides fascinating interviews with family members, and shows the couple sitting hand-in-hand. Did he knowingly attempt to take his own life? Did he do so because he was a physician and, as his wife put it, "didn't want to live the disease through?" Or did Alzheimer's prevent him from having the capacity to make any such decision? The saga was also detailed in a New York Times article, linked here.
Lots of food for discussion with this story. It introduces the limitations of advance directives or living wills; it encourages discussion about Alzheimer's as a "real" phenomenon; it provides a stage for discussing powers of attorney, guardianships and family caregiver roles, just to name a few topics still "hot" today. Plus, it offers historical perspective on recent changes in laws, including uniform laws on jurisdiction for protective proceedings for adults, and assisted-suicide laws, including the California law that became effective on January 1 of this year.
The Klooster Saga lasts several years beyond the NBC Dateline story itself, as Dr. Klooster did live with his wife in California for additional years, before spending his last 18 months in a nursing center. According to this San Francisco news report, he passed away at the age of 72 of natural causes, but, sadly, the break in the relationship between his physician-son and the rest of the family had not healed.
January 13, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Tuesday, January 12, 2016
We all know how important it is to get the appropriate amount of sleep. But it may be more important than we realize. According to an NPR story on January 4, 2016, Lack Of Deep Sleep May Set The Stage For Alzheimer's, we need that deep sleep to help us fend off Alzheimer's. The story focuses on the work of the Oregon Health & Science University scientists. One of the scientists explains why this deep sleep is so important to us: "[t]he brain appears to clear out toxins linked to Alzheimer's during sleep, [the scientist] explains. And, at least among research animals that don't get enough solid shut-eye, those toxins can build up and damage the brain." The story notes that there is definitely a link between sleep and Alzheimer's since many of those with Alzheimer's have some kind of sleep disorder. The OHSU scientists are about to start a study of "that should clarify the link between sleep problems and Alzheimer's disease in humans." The study described is fascinating (let's just say it involves sleeping in an MRI) and will be so important. Read more about the study here. Now, take a nap!
Monday, January 11, 2016
Our good friend and elder law guru, Professor Dick Kaplan from Illinois has released a new article, Reflections on Medicare at 50: Breaking the Chains of Path Dependency for a New Era. (In my opinion, anything Dick Kaplan writes is a must-read). The article is available for download on SSRN here. The abstract explains more:
On the occasion of Medicare’s 50th anniversary, this Article examines the evolution of this essential program from its enactment in 1965 through implementation of the Affordable Care Act. Persons who are, or soon will be, newly enrolled in Medicare may be especially interested in the first part of this Article, which addresses the coverages, exclusions, and costs of Medicare’s constituent parts and concludes (on pp. 20-21) with seven critical questions that every new beneficiary must consider before enrolling. The Article then proffers policy recommendations to better align Medicare with current models of health insurance and provide more appropriate coverage of long-term care expenses.
Friday, January 8, 2016
I've been intrigued by Hillary Clinton's December 2015 campaign announcement of a plan to focus on prevention, treatment and a cure for Alzheimer's disease if elected President. Certainly there is plenty of data to document the need for such a plan. Her announcement seems to be attracting attention -- support? -- as demonstrated in this piece from Lois Bowers, Senior Editor at McKnight's Senior Living, an industry-focused publication.
Thursday, January 7, 2016
As I reported frequently in 2015, in several jurisdictions around the U.S., family members are organizing to challenge abusive guardianships or conservatorships and to seek better accountability from court systems. Here are interesting video resources that examine issues, and which may provide useful opportunities for classroom discussion of this emerging movement.
See: Conservatorship: Legalized Elder Abuse (offering a perspective from California, by the Coalition for Elder and Dependent Adult Rights)
See also: Guardianships Under Fire (a 30 minute Contact 13 special, aired by KTNV on December 28, 2015, from Las Vegas, Nevada).