Wednesday, September 21, 2016

Elder Law Specialist Mark Worthington Moves from Private Practice to Full-Time Academia

Welcome to Elder Law Attorney Mark Worthington, CELA, as he makes his transition from full-time practitioner to full-time academic at Western New England School of Law.  Mark, a former president of the Massachusetts Chapter of the National Association of Elder Law Attorneys (NAELA), has been an adjunct law professor for many years at Western New England, but effective this semester, he's now director of the law school's LLM degree in estate planning and elder law and will continue to teach key classes as a full-time professor of law. 

I've had the pleasure of hosting Mark as a National Elder Law Foundation symposium speaker at Penn State's Dickinson Law.  This move will be a big plus for law students in Massachusetts.  We look forward to seeing you are more conferences in the future, Professor Worthington. 

September 21, 2016 in Current Affairs | Permalink | Comments (1)

Tuesday, September 20, 2016

Caring for Caregivers

While we are on the subject of caregivers (in case you missed yesterday's post ....) I was interested in the article published in the NY Times earlier this month on the impact caregiving has on caregivers. After all, it is a 24/7/365 job.  Love and Burnout: Caregivers, Too, Need Care discusses both the emotional and financial costs of caregiving. "Though caregiving can be a profound and moving journey, caregivers’ needs are often overlooked. The health care system is mainly focused on patients; caregivers who are slowly burning out can slip by unnoticed until it is too late." 

We have all seen studies about the physical manifestations of stress, but do we all realize that the physical impact can continue long after the stress is gone? "Researchers have found that the human immune system can be weakened by stress and strain for up to three years after caregiving ends. As a result, caregivers can be more prone to having serious illnesses. Yet they rarely complain."

Caregivers are true superheroes for what they do, but even superheroes can benefit from help (after all many superheroes have sidekicks or other superhero pals!)  The article offers information about help and services available to caregivers,  from information, to support groups, to resources to respite care.

Ever thought of which caregivers might be more affected by the role of caregiving? The article explains that  "[m]en, who generally have smaller networks of friends than women, are at even greater risk. “They are less likely to maintain relationships and seek help,” said Zaldy Tan, medical director of the UCLA Alzheimer’s and Dementia Care Program. 'They’re less prepared for the caregiving role. So they have a higher burden and burnout rate.'"

Burnout is a real thing and manifests itself in a variety of physical symptoms. The article offers that the best way to combat burnout is to have help. "Perhaps the best antidote to burnout, many experts say, is building a team, rather than handling everything yourself." But there is a risk in assuming that the family will automatically pull together. "The best family teamwork involves meeting, talking and sharing responsibility ... One team member, for example, can handle medical appointments, another might be good at preparing meals. 'Have weekly phone calls if you’re in crisis....'"

Regardless of the planning, it's not going to be an easy job to be a caregiver. But it is going to be an important one.


September 20, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Thinking about Consumer Protection, Families, and Older Clients in Banking

I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers.  Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.  

One of the practical lessons, however, is that each banking institution does it differently when responding to concerns.  For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question.  The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.

Along this line, I recently received news of a timely CLE program.  The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania.  The Pennsylvania Bankers Association is co-hosting the program.  

Speakers include:


Hon. Robin L. Wiessmann
Secretary, PA Department of Banking and Securities


Leonidas Pandeladis, Esq.
Chief Counsel, PA Department of Banking and Securities


Jeffrey P. Ehrlich, Esq.

Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC

The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess.

Related articles

September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 19, 2016

Families Caring for an Aging America: New Report from National Academies

The National Academies Press (NAP) has released a prepublication report (uncorrected copy) of a new report, Families Caring for an Aging America.   The prepublication version of the report can be downloaded now as a pdf or read online. Downloading requires a NAP account or selection of the guest option. (Regardless of the method, the download if free).  You can also preorder the report in hard copy now.

The description of the report offers this information:

Family caregiving affects millions of Americans every day, in all walks of life. At least 17.7 million individuals in the United States are caregivers of an older adult with a health or functional limitation. The nation’s family caregivers provide the lion’s share of long-term care for our older adult population. They are also central to older adults’ access to and receipt of health care and community-based social services. Yet the need to recognize and support caregivers is among the least appreciated challenges facing the aging U.S. population.

Families Caring for an Aging America examines the prevalence and nature of family caregiving of older adults and the available evidence on the effectiveness of programs, supports, and other interventions designed to support family caregivers. This report also assesses and recommends policies to address the needs of family caregivers and to minimize the barriers that they encounter in trying to meet the needs of older adults.

The entire 297 page report is likely too long to be assigned in its entirety to students, but portions would be a good addition to reading assignments. The report is also a good resource for students working on scholarly papers on the topic. The report is divided into 7 chapters, the last of which is devoted to discussing the 4 recommendations made by the committee.  Those 4 recommendations:

RECOMMENDATION 1: The committee calls upon the Administration that takes office in January 2017 to take steps to address the health, economic, and social issues facing family caregivers of older Americans.

RECOMMENDATION 2: State governments that have yet to address the health, economic, and social challenges of caregiving for older adults should learn from the experience of states with caregiver supports, and implement similar programs.

RECOMMENDATION 3: The Secretaries of Health and Human Services, Labor, and Veterans Affairs should work with leaders in health care and long-term services and supports delivery, technology, and philanthropy to establish a public private, multi-stakeholder innovation fund for research and innovation to accelerate the pace of change in addressing the needs of caregiving families.

RECOMMENDATION 4: In all the above actions, explicitly and consistently address families’ diversity in assessing caregiver needs and in developing, testing, and implementing caregiver supports.


September 19, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (1)

Upcoming Conference to Focus on Dispute Resolution in the Face of "Medical Futility"

On Friday, November 18, 2016, Mitchell Hamline School of Law and Children's Minnesota are hosting a one day seminar on "Ethics, Law and Futility" in Minneapolis.  The target audience is described as "Nurses, Physicians, Social Workers, Lawyers, Patient Advocates, Parents/Guardians or anyone interested in ethics, law and futility."  The premise is intriguing, as explained in conference promotion materials:

There is a knowledge gap between what is presumed as one’s ethical and legal obligations to patients during cases of futility and what actually their responsibility is. This conference will assist in clarifying these issues and provide the audience with tools for managing futility cases.

Speakers include: 

  • Thaddeus Pope, Director of the Health Law Institute at Mitchell Hamline School of Law, speaking on "When may you stop life-sustaining treatment without consent?  Leading Dispute Resolution Mechanisms for Medical Futility Conflicts.”

  • Emily Pryor Winston, Associate General Counsel at Children’s Hospitals and Clinics of Minnesota, on "Minnesota Law and Medical Futility Analysis."

  • Jack Schwartz, Adjunct Professor at the University of Maryland School of Law and Former Maryland Assistant Attorney General, on "The Ethics of Legal Risk.

For more, see the home page for the symposium, which provides registration materials.

September 19, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 18, 2016

Lunchroom App Work for Elders?

I was reading an article in the Washington Post about a young woman who was bullied at school. Drawing on her experiences, she created an app for kids who don't have anyone to sit with at lunch.  This once-bullied teen has a simple solution so no one has to eat alone in the cafeteria ever again describes this app and her motivation in creating it.

[She] came up with an idea that would allow students a judgment-free way to find lunch mates without the fear of being rejected. She developed an app called “Sit With Us,” where students can sign up as “ambassadors” and post that there are open seats at their lunch table. A student who doesn’t have a place to sit can look at the app and find an ambassador’s table and know they are invited to join it. When signing up as an ambassador, the student takes a pledge that they’ll be kind and welcoming to whoever comes to sit with them.

Kudos to this inventor!

Although we may think of bullying as a problem faced primarily by children and young adults, happening in schools or in cyberspace. Of course, that is not the case.  Elders can be bullies as well.   So I was thinking-this app could have use beyond lunch at a school cafeteria.  What about its use for an event at a senior center, independent living facility, CCRC, ALF or SNF.  It seems it could be incredibly useful in providing a boost to socialization.  I realize not every elder is tethered to her smart phone, but that surely may change over time.  So, what do you think?  Would this be helpful? Is this already being done?

September 18, 2016 in Consumer Information, Current Affairs, Other | Permalink | Comments (0)

Friday, September 16, 2016

Person Under Limited Guardianship of Person & Capacity to Sign a Deed

Jeffrey Skatoff, Esq. sent me a link to his firm's recent blog post (written by an associate) about a Florida appellate case concerning capacity to sign a deed. I thought this was an interesting case, and wanted to share it with you. Here is the post, Partially Incapacitated Ward Makes Valid Deed

When a person is found incapacitated and placed under a guardianship, the exercise of some or all of that person’s rights are exclusively delegated to the guardian. That is, those rights which the court finds the person (ward) unable to personally exercise can only be exercised by the guardian.  Thus, when a ward takes an action which he or she has lost the right to take, that act is typically void ab initio and treated by the courts as if it never happened. 

Recently, Florida’s Third District was called upon to review a trial court’s judgment invalidating a deed executed by a ward in Marcinkewicz v. Quattrocchi, 2016 Fla. App. LEXIS 13403.  The facts in Marcinkewicz were as follows:  The Ward’s son moved into her home in 2007The son maintained that he had reached an understanding with his mother that she would leave the home to him upon her death in exchange for his agreeing to care for her.  In 2009, the Ward moved into the home of her daughter and son-in-law.  A year later, the Ward was declared incapacitated and her daughter became guardian of her person and property.  Two years later, the guardianship over the Ward’s property was dissolved but a limited guardianship over her person remained. In 2013, the Ward visited her longtime attorney and executed a deed transferring her home to the son-in-law. 

Upon receiving the deed, the son-in-law filed suit to eject the son from the property.  The son counter-sued to invalidate the deed and for other relief.  The trial court found that the Ward lacked capacity to execute the deed and that, as a result, the deed was void.  The trial court further found that because the deed was void, the Ward still owned the property and the son had to vacate the property.

The Third District reversed the trial court’s finding that the deed was void but affirmed its ruling that the son had no rights in the property.  The appellate court began by noting that the validity of the document is presumed and that this presumption can only be overcome with “clear, strong and convincing evidence." (quoting Espriella v. Delvalle, 844 So. 2d 674, 676 (Fla. 3d DCA 2003) (internal citations omitted).  The appellate court noted that the trial court erred in assigning the burden of proving the deed’s validity to the son-in-law/grantee when it was the son who should have had to produce evidence in support of a finding that the Ward lacked capacity to execute the deed. Because the son failed to produce any evidence that the Ward lacked capacity at the time she executed the deed, the trial court’s finding was without evidentiary support.  Because the deed was valid, the son had no rights in the property, equitable or otherwise.  Accordingly, the trial court’s order that the son vacate the premises was upheld.

(citations omitted)



September 16, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Housing | Permalink | Comments (2)

Thursday, September 15, 2016

A New Approach to Designing ALFs

One of our recent grads sent me an article about a new design for an ALF, This Assisted Living Facility Is Designed To Look Like Homes On A Golf Course. Another article, published in the local newspaper, the design is for residents with dementia. Svayus takes a different approach to Alzheimer's explains that this ALF is a place out of time

What they’re about to enter is a world more reminiscent of one that existed in the 1930s and 1940s. The exteriors of the residences are designed to look like homes commonly found during that time period, down to the color of the paint. 

The world of Svayus houses 22 residents, most of whom have Alzheimer’s disease. As the disease progresses, Makesh said, people begin to revert back to their childhood. Svayus serves as something of a time capsule. 

The reasoning behind this is emotional: to provide the residents with a familiar "feel" to their residences. The company has several ALFs designed with the residents in mind. One of them offers this:

Entering into Svayus is like walking outside. In addition to the period-accurate home exteriors, residents are also greeted with a grass-green floor, (artificial) plants, a small waterfall and audio of birds chirping. Overhead is the sky ceiling, designed to help with residents’ physiological clock. During the day, residents will see a sunny sky, even on the grayest Northeast Ohio days. ... 

At night, the sky ceiling darkens and the porch lights come on. 

“Every little thing you see, the wall color, the paint, actually has a therapeutic benefit, a therapeutic value" ...[according to the CEO].

Different aromas also are pumped into the air, providing a therapeutic benefit. Peppermint and frankincense, for example, help with anxiety.  

As far as the ALF designed as though the residents live on a golf course, "rooms designed to look like houses on a golf course. Not only is this aesthetically pleasing, the point is to help residents feel more at home. Compared to your average retirement or assisted living facility, this place looks so much more inviting and calming. The hallway features a ceiling painted like the sky, porches and even porch lights that turn on at night."

Very cool idea. I wonder what one designed for the Boomers would look like? (tie-dye curtains, peace symbols, Beatles posters anyone?)




September 15, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, September 14, 2016

Patients with Dementia, Pain & Hospice Care

The American Journal of Alzheimer's Disease & Other Dementias ran an article on Pain in Hospice Patients with Dementia: The Informal Caregiver Experience. The abstract explains:

Introduction: At the end of life, patients with dementia often experience high levels of pain due to complex interplay of disease processes and numerous barriers to symptom management. In the hospice setting, informal caregivers play an essential role in pain management. This study describes their experience managing pain in hospice patients with dementia.

Methods: We conducted a qualitative analysis of audio-recorded interviews with informal caregivers of hospice patients with dementia who had chosen pain as the challenge they wanted to work on within a problem-solving therapy intervention.

Results: The thematic analysis of sessions with 51 caregivers identified 4 themes: difficulty in communicating with patients, lack of consistent guidance from health-care professionals, perceived uncertainty about the etiology of pain, and secondary suffering.

Discussion: Our findings indicate the possible need for increased support for caregivers, including educational interventions targeting pain etiology and assessment, and improved communication with health-care professionals.

The full article is available here or as a pdf here.

I thought the points made in the discussion were well-taken. Think about a person with dementia and her ability to communicate regarding her pain level.

[The study] findings indicate that caregivers of persons with dementia in hospice face numerous and significant challenges when it comes to managing their loved ones’ pain. Several studies have already demonstrated that the needs of people with dementia at the end of life are not fully met and that caregivers require more support at this time as they may feel exhausted and alone. Furthermore, while communication between health-care providers and caregivers is important, it does not often take place at times of crisis, affecting overall quality of care... Caregivers described uncertainty about the etiology of pain, difficulties in communicating with patients, lack of consistent guidance from health-care professionals, and secondary suffering as the factors that prevented them from properly and effectively managing pain in their loved ones. Thus, these findings indicate the possible need for increased support for caregivers, including educational interventions targeting pain etiology and assessment, and improved communication with health-care professionals.

Well worth reading!

September 14, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, September 13, 2016

Asking The Elder What She Needs Leads to Good Results

A recent study was published in Health Affairs, Home-Based Care Program Reduces Disability And Promotes Aging In Place. The abstract explains:

The Community Aging in Place, Advancing Better Living for Elders (CAPABLE) program, funded by the Center for Medicare and Medicaid Innovation, aims to reduce the impact of disability among low-income older adults by addressing individual capacities and the home environment. The program, described in this innovation profile, uses an interprofessional team (an occupational therapist, a registered nurse, and a handyman) to help participants achieve goals they set. For example, it provides assistive devices and makes home repairs and modifications that enable participants to navigate their homes more easily and safely. In the period 2012–15, a demonstration project enrolled 281 adults ages sixty-five and older who were dually eligible for Medicare and Medicaid and who had difficulty performing activities of daily living (ADLs). After completing the five-month program, 75 percent of participants had improved their performance of ADLs. Participants had difficulty with an average of 3.9 out of 8.0 ADLs at baseline, compared to 2.0 after five months. Symptoms of depression and the ability to perform instrumental ADLs such as shopping and managing medications also improved. Health systems are testing CAPABLE on a larger scale. The program has the potential to improve older adults’ ability to age in place.

A subscription is required to access the full article. A Kaiser Health News (KHN) story about the study, Study Finds Benefits When Seniors Call Shots To Help Them explains "A federally funded project that researchers say has potential to promote aging in place began by asking low-income seniors with disabilities how their lives at home could be better ... At the end of the program, 75 percent of participants were able to perform more daily activities than they could before and symptoms of depression also improved, the researchers said in the journal Health Affairs."

According to the KHN article, the study is based on two ideas: "environment influences health" and elders "should set goals to improve their health." So asking the elder what the elder needs, and then providing the right services leads to a good result, it seems. "Instead of dictating health goals to the patients, the therapist’s first two visits were about listening to what the seniors thought their biggest problems were and creating plans on how to tackle them." The positive impact continued after the study ended, according to one of the researchers interviewed for the article,  who noted environment plays a big role as a barrier to aging in place.


September 13, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (1)

Sunday, September 11, 2016

Just Keep Moving, Even in the Hospital

Have a fitness tracker? A standing desk?  Exercise regularly? If you answered yes to any (or all) of these questions, you know how important it is for us to be active. It turns out that being active is more important than we thought, perhaps.  Kaiser Health News (KHN) ran an article in August, Elderly Patients In The Hospital Need To Keep Moving that features a project at a hospital to keep elders active. The article highlights "the coordinator of a unit designed to address the challenges specific to caring for the elderly. She told her new patient that throughout her stay, one of the main goals would be to keep her active... The medical center’s effort to get older patients up and moving while they are in the hospital is far from typical. Despite a growing body of research that shows staying in bed can be harmful to seniors, many hospitals still don’t put a high priority on making them walk."

Part of the success of such a project is changing the mindset of patients and others.

In addition to employing specially trained staff who work together as a team, the Alabama unit has special handrails attached to the walls, low-glare lighting and non-skid floors. Every room has a walker and plenty of space to move around. Volunteers walk with patients, and therapists work with them on maintaining their strength.

Staff members try to disabuse patients of the idea that they are there to rest. “People walk in the door of a hospital and think it’s OK to stay in a bed. It’s not,” said ["the coordinator of a unit designed to address the challenges specific to caring for the elderly."].

The article notes changing mindsets isn't without challenges, and this project started with changing caregiver attitudes.  Why might there be some reluctance to buy-in to the idea of getting patients moving?  Well, the Affordable Care Act might be one reason: "The Affordable Care Act explains some of the reluctance by staff at many hospitals to get patients moving, experts say. Under the law, hospitals are penalized for preventable problems, including falls. Researchers believe that hospital staffers, to ensure their patients don’t fall, often leave them in their beds." The article offers other reasons, such as lack of staffing or fear of being sued are offered. The physical layout of the hospital room and hospital may be more conducive to patients staying in bed rather than moving about. (think about the beds, the hospital tables, the remote controls, and more).

The results of not moving go beyond the hospital stay.

The impact of remaining so sedentary in the hospital can be devastating for older patients: It is puts them at greater risk for blood clots, pressure ulcers and confusion.

Immobility can also reduce patients’ ability to take care of themselves when they go home — a difficulty that persists a month after their discharge, according to Brown. And it puts them at higher risk of readmission to the hospital, according to research.

Immobility hurts older patients more than younger ones, in part because the elderly are generally weaker, have less bone density and are at higher risk of falling. Ironically, keeping a patient in bed, which is often intended to prevent falls in the hospital, can increase their risk of falling after they are discharged, experts said.

Being more mobile in the hospital can save money, too, as well as improve the patient's health.  So now that you have read this post, put down your computer and go for a walk. See you when you get back!


September 11, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

"Come Hell or High Water" at the Movies

Over the weekend, I caught the recently released movie, Hell or High Water. Both "contract law" and "elder law" figure into the plot.  Warning: Spoilers ahead -- so don't keep reading if you don't want to know.

The timeless and yet still "modern" plot -- with sons trying to save the family homestead from the bank -- has a few good West Texas twists (although the movie was mostly filmed in my old stomping grounds of New Mexico).  I enjoyed the play on words with the title of the movie from a legal perspective.  The bank's "reverse mortgage" on the homestead has a payoff clause that bars any excuses for nonpayment, such as Acts of God or other hardships.  In legal circles such clauses have are called "come hell or high water" terms, rejecting any "force majeur" excuses for late payments.  So the brothers are up against the clock. Can they steal enough from the very bank conglomerate that made the loan in order for them to get the mortgage paid off by the deadline?  Good character actors abound, including two waitresses who steal the scenes in small town diners and Jeff Bridges at the other end of a Texas journey he began 45 years ago with The Last Picture Show.

The reverse mortgage is the elder law part of the plot.  The movie hints the aging mother was loaned just $25,000 on the homestead (where oil may be found) -- enough to be difficult to pay off (especially with taxes and fees), but not enough money to truly save her from her debts.   While the plot stretches the realities of reverse mortgages, in truth such mortgages are typically very high cost loans, and are not easily refinanced. 

September 11, 2016 in Consumer Information, Current Affairs, Ethical Issues, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, September 9, 2016

The Surprisingly Complex Law of Descansos (a/k/a Roadside Memorials)

When I was growing up in Arizona, my father and I spent a lot of time on the road, and we would often comment on the small white crosses found along the highways marking the locations of fatal car accidents.  Perhaps this conversation was a bit morbid in retrospect, but the presence of the crosses made an impression on me, demonstrating just how significant a momentary lapse of awareness can be for drivers operating at high speeds.  I'm not sure when those state-sponsored memorials ended, but you still sometimes see markers installed by families. They can vary from simple to elaborate. In the Southwest generally, they are sometimes known as "descansos," a Spanish word for "resting places," and there is a long tradition behind them.  

More recently in Arizona, the tradition has been challenged, with state authorities aggressively removing the impromptu memorials as "safety hazards" in early 2016, citing long-standing laws prohibiting such markers.  An Arizona newspaper chronicled the issues earlier in the year: 

For the past 15 years, Pete Rios would say a special silent prayer as he drove past a large white cross that sat on top of a rocky hill just alongside the road on his way to work.


As a little boy, he said, he was told “that’s what you do to show respect” for the many memorial sites that line Arizona highways, marking the deaths of loved ones.


One in particular was special to the Pinal County supervisor.


It bore the initials of his sister, Carmen Rios, who had been killed near that spot by a drunken driver in 2000. It sat surrounded by a 3-foot angel, faded in color from years of sun beating down on it, and ceramic vases that held new flowers with every passing holiday and changing of seasons.


Last week, the memorial disappeared.

When dozens of crosses along Arizona highways disappeared suddenly, families protested.  They countered the "safety" argument, pointing to the absence of any evidence that the small crosses caused drivers to stop or otherwise change their course of driving.  The Arizona Department of Transportation offered "alternatives" as memorials, suggesting families could participate in Arizona's "adopt a highway" program.   

The grassroots advocacy of families took hold, and recently the Arizona Department of Transportation announced a new policy:

Recognizing the need of families to grieve in different ways for those killed in crashes, the Arizona Department of Transportation has established a policy allowing memorial markers along state-maintained highways in a way that minimizes risks for motorists, families and ADOT personnel.


Developed with input from community members, the policy specifies a maximum size and establishes standards for materials and placement so markers present less chance of distracting passing drivers or damaging vehicles leaving the roadway....


  • Size and materials: A marker may be up to 30 inches high and 18 inches wide, and the wood or plastic/composite material components used to create it may be up to 2 inches thick and 4 inches wide. It may include a plaque up to 4 inches by 4 inches and up to 1/16 of an inch thick. It may be anchored up to 12 inches in the ground, but not in concrete or metal footings.
  • Placement: In consultation with ADOT officials, families will place markers as close as possible to the outer edge of the highway right of way. Markers may only be placed in front of developed property if the property owner gives written permission to the family.

It turns out that states across the nation have different laws and policies governing roadside memorials.  And, I guess I'm not entirely surprised to discover law review articles on this very subject. Florida Coastal Associate Law Professor Amanda Reid has two very interesting pieces, including "Place, Meaning and the Visual Argument of the Roadside Cross," published in 2015 in the Savannah Law Review.

September 9, 2016 in Current Affairs, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations, Travel | Permalink | Comments (0)

Thursday, September 8, 2016

High-Need Patients and the Impact on the Health Care System

The Commonwealth Fund released issue briefs examining "high-need" patients. High-Need, High-Cost Patients: Who Are They and How Do They Use Health Care? is a 14 page issue brief, which is available as a pdf here.  Here is the abstract

Issue: Finding ways to improve outcomes and reduce spending for patients with complex and costly care needs requires an understanding of their unique needs and characteristics. Goal: Examine demographics and health care spending and use of services among adults with high needs, defined as people who have three or more chronic diseases and a functional limitation in their ability to care for themselves or perform routine daily tasks. Methods: Analysis of data from the 2009–2011 Medical Expenditure Panel Survey. Key findings: High-need adults differed notably from adults with multiple chronic diseases but no functional limitations. They had annual health care expenditures that were nearly three times higher—and which were more likely to remain high over two years of observation—and out-of-pocket expenses that were more than a third higher, despite their lower incomes. On average, rates of hospital use for high-need adults were more than twice those for adults with multiple chronic conditions only; high-need adults also visited the doctor more frequently and used more home health care. Conclusion: Wide variation in costs and use of services within the high-need group suggests that interventions should be targeted and tailored to those individuals most likely to benefit.

Looking at this from an elder law perspective, I was interested in the age data in this brief. "High-need adults are disproportionately: ... Older. More than half were age 65 and older; of these, most were 75 and older. In contrast, only about a third of adults with multiple chronic diseases, and less than a fifth of the adult population as a whole, were age 65 and older."

The companion issue brief, Health System Performance for the High-Need Patient: A Look at Access to Care and Patient Care Experiences, is available here as a pdf. The abstract for this brief explains

Issue: Achieving a high-performing health system will require improving outcomes and reducing costs for high-need, high-cost patients—those who use the most health care services and account for a disproportionately large share of health care spending. Goal: To compare the health care experiences of adults with high needs—those with three or more chronic diseases and a functional limitation in the ability to care for themselves or perform routine daily tasks—to all adults and to those with multiple chronic diseases but no functional limitations. Methods: Analysis of data from the 2009–2011 Medical Expenditure Panel Survey. Key findings: High-need adults were more likely to report having an unmet medical need and less likely to report having good patient–provider communication. High-need adults reported roughly similar ease of obtaining specialist referrals as other adults and greater likelihood of having a medical home. While adults with private health insurance reported the fewest unmet needs overall, privately insured high-need adults reported the greatest difficulties having their needs met. Conclusion: The health care system needs to work better for the highest-need, most-complex patients. This study’s findings highlight the importance of tailoring interventions to address their needs.

September 8, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, September 7, 2016

Boomer Law Partner Retirement?

As Baby Boomer partners retire, law firms face increasing costs and client issues was published in the ABA Journal. The article focuses on the upcoming retirement of law partners from the Baby Boomer and Silent Generations cohorts. "Nearly half of the partners in the nation’s top 200 law firms are Baby Boomers or members of the older Silent Generation. And that means there will be a wave of upcoming retirements that will be the most ever experienced by BigLaw...Sixteen percent of partners will retire in the next five years and 38 percent will retire in the next decade, the American Lawyer (sub. req.) reports...."

The impact of these potential retirements will ripple across law firms, including leadership, client relations, and revenues. The firms will also face other costs-the actual costs of paying for retirements from pensions, revenues, return of capital, etc.  The article also notes that some firms are taking specific steps to weather this retirement wave by "trying to reduce retirement costs by raising the retirement age; capping the annual payout from annual earnings; or changing the payout formula, and switching to defined contribution plans in which the lawyers carry the risk of a declining market."

September 7, 2016 in Consumer Information, Current Affairs, Legal Practice/Practice Management, Retirement | Permalink | Comments (0)

Do You Know Seniors Working in the "Gig" Economy?

My colleague, Becky Morgan, posted recently about the trend of senior-aged consumers as customers of Uber and other ride-hailing companies.   Smart marketing for the alternatives to traditional taxi-cabs includes finding ways for seniors to use and pay for services without smart phones.

Additional research demonstrates that seniors may also play an increasing role in the work force for ride-hailing companies.  They are drivers, not just passengers (both literally and metaphorically).  The latest research from the JP Morgan Chase Institute introduced me to a new label -- the "gig economy," and ride-hailing services are just one part of that economy: 

Our research shows that a rising number of seniors are supplementing their income -- in non-trivial amounts -- by participating in the "gig economy", or Online Platform Economy. . . Among all adults, participation in the Online Platform Economy has been growing very quickly. To measure this growth, we assembled a dataset of over 260,000 anonymized Chase customers who earned income from at least of of 30 distinct platforms between October 2012 and September 2015 -- the largest sample of platform earners to date. During this period, the cumulative participation rate grew from 0.1% of adults to 4.2%. a 47-fold growth.


Although most participants in the platform economy are younger workers, seniors are not standing on the sidelines.  In the 12 months ending September 2015, about 0.9 percent of seniors were providers in the


 in the platform economy, compared to 3.1 percent of the general population.  With over 47 million seniors in America, this translates to over 400,000 seniors participating in the platform economy. 


For those seniors who do participate, their earnings are often substantial.  In our research, we distinguish between labor and capital platforms.  Labor platforms, such as Uber or TaskRabbit, connect customers with freelance or contingent workers who perform discrete projects or assignments. Capital platforms, such as eBay or Airbnb, connect customers with individuals who rent assets or sell goods peer-to-peer.

For more on participation of seniors in the Gig Economy, and for other interesting data points about seniors as both workers and spenders, read Past 65 and Still Working: Big Data Insights on Senior Citizens' Financial Lives, from JP Morgan Chase Institute.




September 7, 2016 in Consumer Information, Current Affairs, Retirement, Web/Tech | Permalink | Comments (0)

Tuesday, September 6, 2016

The Continuing Problem of Polypharmacy

Kaiser Health News (KHN) ran the story, ‘America’s Other Drug Problem’: Copious Prescriptions For Hospitalized Elderly, focusing on the problems of polypharmacy in elders. Opening with examples of actual patients, one of whom was taking 36 prescriptions,  the story focuses on the issue of elders taking multiple medications and the implications of doing so.

An increasing number of elderly patients nationwide are on multiple medications to treat chronic diseases, raising their chances of dangerous drug interactions and serious side effects. Often the drugs are prescribed by different specialists who don’t communicate with each other. If those patients are hospitalized, doctors making the rounds add to the list — and some of the drugs they prescribe may be unnecessary or unsuitable.

“This is America’s other drug problem — polypharmacy,” said Dr. Maristela Garcia, director of the inpatient geriatric unit at UCLA Medical Center in Santa Monica. “And the problem is huge.”

Among the problems with polypharmacy noted in the article is whether the patient actually needs the drug and the role of medication issues in the patient's hospitalization.  The numbers are high:

Older adults account for about 35 percent of all hospital stays but more than half of the visits that are marred by drug-related complications, according to a 2014 action plan by the U.S. Department of Health and Human Services. Such complications add about three days to the average stay, the agency said.

Data on financial losses linked to medication problems among elderly hospital patients is limited. But the Institute of Medicine determined in 2006 that at least 400,000 preventable “adverse drug events” occur each year in American hospitals. Such events, which can result from the wrong prescription or the wrong dosage, push health care costs up annually by about $3.5 billion (in 2006 dollars).

The article reviews the instances where patients are prescribed additional prescriptions during hospitalization and on discharge, are confused about what medications to take.  Who becomes the "traffic cop" to keep the patients from undergoing drug-related complications?  The pharmacist! Focusing on the inpatient geriatric unit in one hospital, the story explores the importance of the clinical pharmacist's inclusion in a patient's medical team. The featured hospital hired their clinical pharmacist about 3 years ago, according to the story,  with "[t]he idea was to bring a pharmacist into the hospital’s geriatric unit to improve care and reduce readmissions among older patients." How successful has this been?

Having a pharmacist ... on the team caring for older patients can reduce drug complications and hospitalizations, according to a 2013 analysis of several studies published in the Journal of the American Geriatrics Society.

Over a six-month stretch after [the clinical pharmacist] started working in UCLA’s Santa Monica geriatric unit, readmissions related to drug problems declined from 22 to three. At the time, patients on the unit were taking an average of about 14 different medications each.

This seems like a really great idea and hopefully one that will be picked up by other geriatric units.

September 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1)

Monday, September 5, 2016

"Mission Creep" in End of Life Care?

The Washington Post ran an article last month that looked at the provision of treatments to those who are at the end of life.    Mission creep doesn’t benefit patients at the end of life  explains

Here in America, there is a deeply held belief that advances in medicine will eventually conquer or cure the chronic scourges of cancer, dementia, heart disease, lung disease and diabetes. This notion leads many elderly patients to seek aggressive treatment not only to spare their loved ones grief but because they hope (and expect) to be cured, if only they hold on just a little longer.

So how often is futile care provided? And why?  The story reports "more than 75,000 people older than 85 die in intensive care units seeking care that proves to be futile, according to a 2004 study, and why more than 65 percent of our senior citizens die in institutions when a significant majority say they would prefer to die at home, according to a 2014 report by the Institute of Medicine."  So what does the author mean by "mission creep" when patients make choices?

Not every patient has the option to decline surgery for a threatening aneurysm or chemotherapy for late-stage cancer. Most patients have multiple smaller decisions to make in the mission creep of treatment vs. care. These patients and their families need help thinking about the natural progression of aging and visualizing what they want at the end. Then, if they decline treatment and choose palliative care, they can consider an exit strategy.

So oversimplified, this boils down to a quality vs. quantity discussion. The author recommends that when the patient is an elder, "that conversation should include a discussion about futile treatments vs. making sure the last days on earth are comfortable...." and that "discussions with our trusted physicians should evolve from how to die later to how to die better, including with an exit strategy."

September 5, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Friday, September 2, 2016

Thinking About References for Current and Recent Law Students

I'm frequently asked by current students or recent graduates to serve as a reference and usually I'm happy to do so.  I like it when students provide me with  basic information, reminding me what classes they took with me, giving me their most recent resume and a copy of their transcript.  Students who have taken the time to chat with me outside of class over the course of their law school careers help me provide relevant information to prospective employers about their strengths and plans.  

Students who showed initiative in their studies earn strong references.  Did the student "coast" with "easy A" courses, or did they seek out the courses truly relevant to their goal positions?  Do they have a polished writing sample?  Have they taken appropriate leadership roles in  organizations?  Are they hard working, punctual, willing to do second (third?) drafts? 

What skills are you looking for from prospective lawyers?  


September 2, 2016 in Current Affairs, Legal Practice/Practice Management | Permalink | Comments (0)

Baby Boomers Driving the World....of Ride Hailing?

My dear friend and colleague Professor Mark Bauer sent me this article from the Huffington Post about the newest market share for Uber and Lyft: Boomers!  Once The Domain Of Millennials, Uber And Lyft Are Now Pursuing Seniors includes my favorite line of the day about Boomers: "It’s the Baby Boomers’ world. We’re just living in it."

"Ride-hailing services want to make sure Grandma Betty can get to bridge club just as easily as her 22-year-old grandson travels to and from ... whatever it is young folks are doing these days. ... Once the domain of 20-somethings who might have a drink or two and need a safe ride home, companies like Lyft and Uber have set their sights on a different age range entirely: senior citizens."

The article explains how the 2 companies have entered into agreements with companies-Uber with a home care company and Lyft with a company that books rides for elders without smart phones.  The article notes that there are also other ride-hailing companies beyond these 2 that are providing ride-sharing services for those elders who don't have smart phones.

The companies are boldly moving into this market demographic. In fact they've started "offering non-emergency medical transport services, specifically targeting customers whose rides would be reimbursed by Medicaid."

Consider also what Lyft is doing with the city of Centennial, Colorado, "where 15 years from now at least 30 percent of the population is projected to be over the age of 65....[C]ity officials are exploring replacing current dial-a-ride services with less expensive, more efficient rides via Lyft."

“We call Centennial the Silver Tsunami,” Centennial Mayor Cathy Noon told The Atlantic blog CityLab. “As people age, one thing to go is the ability to drive. That means losing your freedom to get to doctor’s appointments and to stay social with friends. We really want to help keep the people who started Centennial engaged in it.”

We all know how the loss of driving ability can impact a person on a number of levels. I wonder whether this transportation option will be financially feasible  enough to become  a widespread solution. If so, it will be great, because not only does this provide  transportation, but has the added benefit of socialization.  I am still holding on for the availability of self-driving cars.


September 2, 2016 in Consumer Information, Current Affairs, Other | Permalink | Comments (0)