Tuesday, February 28, 2017

More on Supreme Court Nominee Neil Gorsuch on End-of-Life Issues

Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?"   The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.

I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.  

With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition): 

The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves.  Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future.  The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....

 

The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."

While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?" 

My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.

February 28, 2017 in Advance Directives/End-of-Life, Consumer Information, Crimes, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Religion, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, February 24, 2017

Washington State Discusses Expansion of Limited License Legal Technicians to Estate & Health Care Law

In 2012, the Washington Supreme Court approved Admission to Practice Rule 28, which created a new program for authorization of "limited license legal technicians," also known as LLLTs or "Triple L-Ts." The express purpose of the program was to meet the legal needs of under-served members of the public with qualified, affordable legal professionals, and the first area of practice chosen was domestic relations.  With that first experience in hand, in January 2017, the Washington State Bar Association has formally proposed expansion of the LLLT program to enable service to clients on "estate and health law."  

As described in the Washington State Bar Association materials, this expansion will include "aspects of estate planning, probate, guardianship, health care law, and government benefits. LLLTs licensed to practice in this area will be able to provide a wide range of services to those grappling with issues that disproportionately affect seniors but also touch people of all ages who are disabled, planning ahead for major life changes, or dealing with the death of a relative."  The comment period is now open on the proposed expansion.

For more about this important innovation, there was an excellent 90 minute-long webinar hosted by the Washington Bar in February 2017, with members of the Limited License Legal Technician Board explaining the ethical rules (including mandatory malpractice insurance), three years of education and 3000 hours of experience required for LLLTs to qualify.  Now available as a recording, the comments from the Webinar audience, including lawyers concerned about the potential impact on their own practice areas, are especially interesting.  

Many thanks to modern practice-trends guru, Professor Laurel Terry at Dickinson Law, for helping us to keep abreast of the Washington state innovation. 

February 24, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Thursday, February 23, 2017

North Carolina Appeals Ct Declines to Recognize Pre-Death Cause of Action for Tortious Interference with Expectancy

An interesting decision addressing standing issues arising in the context of a family battle over an 87-year old parent's assets was issued by the North Carolina Court of Appeals on February 21, 2017.  In Hauser v Hauser, the court nicely summarizes its own ruling (with my highlighting below): 

This appeal presents the issues of whether (1) North Carolina law recognizes a cause of action for tortious interference with an expected inheritance by a potential beneficiary during the lifetime of the testator; and (2) in cases where a living parent has grounds to bring claims for constructive fraud or breach of fiduciary duty such claims may be brought instead by a child of the parent based upon her anticipated loss of an expected inheritance. [Daughter] Teresa Kay Hauser (“Plaintiff”) appeals from the trial court's 3 March 2016 order granting the motion to dismiss of [Son] Darrell S. Hauser and [Son's Wife] Robin E. Whitaker Hauser (collectively “Defendants”) as to her claims for tortious interference with an expected inheritance, constructive fraud, and breach of fiduciary duty as well as her request for an accounting. Because Plaintiff's claims for relief are not legally viable in light of the facts she has alleged, we affirm the trial court's order.

The succinct North Carolina opinion, declines to follow the logic of Harmon v. Harmon, a 1979 decision from the Maine Supreme Court, that addressed the "frontier of the expanding field" on torious interfence of with an advantageous relationship, by recognizing a "pre-death" cause of action. 

Currently the North Carolina opinion is available on Westlaw at 2017 WL 672176; I'll update this post with a open access link if it becomes available.  

February 23, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, February 21, 2017

Texas Elder Abuse Statute Used to Convict and Sentence Doctor to Life in Prison

The deeply disturbing medical practice history of Christopher Duntsch, who worked as a neurosurgeon in Texas until 2013, culminated in his February 2017 conviction and sentence of life in prison for his injuries to a 74-year old patient.  It is relatively rare for medical "malpractice" cases to lead to criminal charges, but as detailed in news articles covering the trial, there was strong, adverse medical testimony about how Duntsch's improper surgical procedures caused a horrific outcome.

Initially accusing Duntsch of criminal acts arising in the context of surgical procedures to several of his patients, the prosecution ultimately focused the criminal trial on his 2012 spinal surgery on a single patient under Texas Penal Code Section 22.04, for "Injury to a Child, Elderly Individual, or Disabled Individual." The pertinent portion of the statute provides:

"(a) A person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act . . . causes to a . . . elderly individual . . . : (1) serious bodily injury."      

The offense becomes a first degree felony, if it is proven that the conduct was "committed intentionally or knowingly." If the conduct had been "only" reckless, the offense would be a felony of the second degree.

Under the statute, an "elderly individual" is defined as a "person 65 year of age or older." 

In a Washington Post article on the conviction, a Texas attorney is quoted:

“I cannot recall a physician being indicted for aggravated assault for acts committed during surgery,” Toby Shook, a Dallas defense attorney who spent 23 years working as a Dallas County prosecutor, told the magazine. “And not just Dallas County — I don’t recall hearing about it anywhere.”

February 21, 2017 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

DC Aid-in-Dying Law Final

As we had blogged previously, D.C. city council had passed an aid-in-dying law that was signed by the mayor. Congress had 30 days to overturn it and as we also blogged previously, that at least one Congressman attempted to overturn it. The 30 days expired last week, and the law became effective on February 18, 2017.  Washington, D.C., now seventh place in U.S. to officially legalize assisted suicide  explains that this means that "D.C. became the seventh jurisdiction in the U.S. to legalize assisted suicide on Saturday, as the Republican-controlled Congress failed to block the law."  Although there was a resolution from the House Oversight Committee, the resolution wasn't voted on by the House, so the law became effective.

 

February 21, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 20, 2017

How Do "Domestic Partnerships" Fare for Elderly Couples?

George Washington Law Professor Naomi Cahn recommended an interesting new article from the Elder Law Journal, "The Precarious Status of Domestic Partnerships for the Elderly  in a Post-Obergefell World."

Authors Heidi Brady, who is clerking for the Fifth Circuit Court of Appeals, and Professor Robin Fretwell Wilson from the University of Illinois College of Law, team to analyze key ways in which elderly couples in domestic partnerships may be treated differently, and sometimes more adversely, than same sex couples who are married.  From the abstract: 

Three states face a particularly thorny question post-Obergefell [v. Hodges, the Supreme Court's 2015 decision recognizing rights to marry]: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. . . . This Article drills down on three specific obligations and benefits tied to marriage -- receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program -- and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. 

Thank you, Naomi, for this recommendation.  

February 20, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, February 14, 2017

More on Aid-in-Dying

We reported previously that DC had passed an aid-in-dying bill but that there were those in Congress who expressed an intent to overturn it. But it's not just the DC scenario that has advocates concerned.  Kaiser Health News ran an article, Aid-In-Dying Advocates, Disheartened By Supreme Court Pick, Brace For New Fight. The article, part of KHN's morning briefing, summaries articles from other publications about Judge Gorsuch's book and his position on aid-in-dying. Click here to access those articles.

While we're on the subject, also check out this article from KHN on Aid-in-Dying Laws Don’t Guarantee That Patients Can Choose To Die, discussing patient access in those states with aid-in-dying laws (we'd previously discussed this in an article from the Denver Post).

February 14, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 30, 2017

Hospitals Opting Out-Colorado Aid-In-Dying

The Denver Post ran an article recently that some Colorado hospitals are opting out of the new aid-in-dying law.  About 30 hospitals opting out of Colorado’s medical aid-in-dying law, Three major health systems have announced they will not participate explains that

Up to 30 Colorado hospitals are opting out of the state’s new medical aid-in-dying law, either fully or in part, but whether that means the doctors they employ are banned from writing life-ending prescriptions is a controversy that could wind up in court.

At this point, terminally ill Coloradans who want to end their lives under the law will need to find out whether their physicians are allowed to participate.

The article explains that whether the ban applies to doctors for those hospitals depends on the hospital. For example, one hospital group has said  that the doctors could "talk to their patients about aid in dying and can write life-ending prescriptions in a hospital. But hospital pharmacies will not fill those prescriptions and patients are not allowed to take their own lives in the hospital, which health officials figure is an unlikely request anyway." The proponents of the law take a different view on whether the ban prevents the doctors from writing the prescriptions, but indicate litigation may be needed to decide the matter.

The article explains the provision of the law

The law says a hospital may prohibit an employed or contracted physician from writing a prescription for someone “who intends to use the aid-in-dying medication on the facility’s premises.” It also makes clear that a healthcare provider can choose whether to participate in medical aid in dying and that the provider must transfer the patient’s medical records to a new health care provider if requested.

With the different interpretation of the law, it may be that litigation will be necessary to figure this out. Stay tuned.

January 30, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Friday, January 20, 2017

Update on D.C. Physician-Aided Dying Law

We blogged previously that D.C.'s mayor signed the physician-aided dying bill that was then sent to Congress. According to a January 9, 2017 article in the Washington Post, Congressman plans to block D.C. law to let terminally ill patients end their lives, "Representative Jason Chaffetz (R-Utah) said ...  he’ll use rarely invoked congressional authority to block a new law passed by the D.C. Council to allow doctors to help end the lives of terminally ill patients in the city"  by the end of January.  The article notes that it's rare for Congress to block a D.C. law.   On January 12, 2017 Senator Lankford and Representative Wenstrup (Oklahoma and Ohio respectively) introduced resolutions to block the law.

Stay tuned.

January 20, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, January 17, 2017

UCLA Prof. Allison Hoffman on "Reimagining the Risk of Long-Term Care"

With the new Presidential administration ahead, many of us are asking what government policies or programs will be "re-imagined."  With changes on the horizon, an especially interesting perspective on long-term care is offered by UCLA Law Professor Allison Hoffman with her recent article, "Reimagining the Risk of Long-Term Care,"  published in the Yale Journal of Health Policy, Law & Ethics. From the abstract:

While attempting to mitigate care-recipient risk, in fact, the law has steadily expanded next-friend risk, by reinforcing a structure of long-term care that relies heavily on informal caregiving. Millions of informal caregivers face financial and nonmonetary harms that deeply threaten their own long-term security. These harms are disproportionately experienced by people who are already vulnerable--women, minorities, and the poor. Scholars and policymakers have catalogued and critiqued these costs but treat them as an unfortunate byproduct of an inevitable system of informal care.
 
 
This Article argues that if we, instead, understand becoming responsible for the care of another as a social risk--just as we see the chance that a person will need long-term care as a risk--it could fundamentally shift the way we approach long-term care policy.
 
Professor Hoffman examines various ways in which society expects third parties, including but not limited to family members as "next friends," to provide unpaid assistance and/or out-of-pocket dollars to disabled adults or seniors needing help.  She writes, for example, about filial support laws used sporadically to compel certain family members to finance care.  She observes that often, without direct personal experience, society members are unaware of the real costs of long-term care, both financially and emotionally, writing: 
 
As one informal caregiver and scholar described: “I feel abandoned by a health care system that commits resources and rewards to rescuing the injured and the ill but then consigns such patients and their families to the black hole of chronic ‘custodial’ care.” What next friends do for others is herculean, both in terms of the time spent and the ways that they offer assistance.
 
Recommended reading for the new year.  

January 17, 2017 in Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, January 13, 2017

Should All States Permit Use of Medicaid for Assisted Living?

The plight of 108-year-old Ohio resident Carrie Rausch, facing the prospect of losing her spot in an assisted living community because she's run out of money, is generating a lot of attention in the media, including People magazine.  Some states, such as New Jersey, have expanded the options for public assistance in senior living -- beyond nursing homes -- to permit eligible individuals to use Medicaid for residential care.  Assisted living is usually much less expensive than a nursing home; but the pool of individuals who would might opt for assisted living rather than the "dreaded" nursing home is also larger.   Ohio, along with many states, hasn't gone the AL route:  

If Rausch can’t raise the money needed, she’ll have to leave what has been her home for the past three years and move into a nursing home that accepts Medicaid.

[Daughter] Hatfield worries about the toll the move would take on her mom, who is more lively and active than most people 10 or even 20 years her junior. . . . “We need a miracle,” she says.

Ms Rausch's adult daughter -- herself in her late 60s -- has turned to GoFundMe to attempt to raise the $40k needed for a year of continued residence, and as of the date of this Blog post, more than 700 donors have responded.  

At a deeper level, however, this story reveals important questions about public funding for long-term care on a state-by-state basis. This funding issue is repeating itself throughout the country for seniors much younger than the frugal and relatively healthy Carrie Rausch.  On a national basis, GoFundMe "miracles" seem an impractical solution.

January 13, 2017 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 12, 2017

Should Home Care Providers Be Permitted to Seek Broad Waivers of Liability from Elderly Clients? (And if so, are there clear standards for a knowing waiver?}

Recently an attorney wrote to me about an elderly client who had been victimized by a home care worker hired through an agency; the allegations included physical abuse, intimidation, identity theft, failure to provide care, theft of personal possessions and false imprisonment.  Not too surprisingly, the specific worker was long gone once the harm was discovered by non-resident family members.  Significantly, the family also learned that the mother had signed the agency's standard contract withtwo pages of single-spaced type that covered everything from hours to wages, and which included a numbered paragraph purporting to grant a broad waiver of the agency's liability for actions of the individuals sent to the home of the elderly client. Key language provided:

"CLIENT and/or CLIENT's agent/responsible party agrees on behalf of CLIENT, CLIENT's agent/responsible party, beneficiaries, heirs, and/or family/household members to release [agency], owner, officers, directors, agents and employees, office, office directors, office employees, and Caregiver from any and all liability, potential or real, for any injury, claim, damage, or loss, including attorney's fees, incurred in connection with the performance of this agreement and all services, incurred in connection with the performance of this agreement and all services performed by Caregiver for the CLIENT, including but no limited to assisting CLIENT with his/her medications and providing transportation to Client or any member of CLIENT's family/household, except for gross negligence...."  

The attorney asked about any state regulatory language that would limit liability waivers or require, at a minimum, bold faced type or large type for such attempted waivers when used with elderly or disabled clients. Those receiving home care may be uniquely vulnerable to unwitnessed abuse, and also less likely to report abuse because of the fear of the "worse" alternative, a nursing home.   In the state in question, regulations  require certain disclosures to be made in a form "easily read and understood," but the regulations don't specifically address (nor prohibit) waivers of the company's liability. See e.g. PA Code Section 611.57.    

What about in your state? Is there relevant regulation? Alternatively, is there a "best" (or at least better) practice in the home care industry when seeking contractual waivers of liability?  The issue reminds me of an article written in the mid-1990s by Charlie Sabbatino discussing the one-sided nature of nursing home contracts in the absence of careful regulation protecting patient rights.  He wrote:

Broadly worded waivers of liability for personal injury are likely to be unenforceable and void as a matter of public policy in most states. Residents are most commonly asked to consent to absolute waivers for injury caused by other patients or by independent contractors in the facility, or for injury occurring outside of the facility, such as on a field trip. Federal and state nursing home laws have not squarely addressed personal injury waivers. even though the whole thrust of the regulatory framework is expressly intended to set standards for the protection of residents' health, safety, and welfare.

And the subtitle of the article on Nursing Home Contracts is "Undermining Rights the Older Fashioned Way." 

January 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, January 10, 2017

Oregon Supreme Court Rejects Medicaid Estate Recovery for Asset Transfers between Spouses

In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014).  The high court concluded:

Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.

Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case.  His firm's Blog further reports on the effects of the final ruling in Oregon:

"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."

January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, December 27, 2016

DC Aid-in-Dying Legislation

The mayor of DC signed aid-in-dying legislation for the District which now has to be sent to Congress for a 30 day review period. Bowser quietly signs legislation allowing terminally ill patients to end their lives explains that the law is based on Oregon's statute. Congress has 30 days to approve or override it, Washington, D.C., Approves Aid-in-Dying Bill.

December 27, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink

Monday, December 26, 2016

Oregon Estate Recovery Rules Held Invalid

Attorney Tim Nay ( NAELA's first president by the way), recently posted on listservs about the Oregon Supreme Court's opinion on the state Medicaid agency's rules regarding estate recovery.  The Oregon Supreme Court, in Nay v. Department of Human Services, affirmed the court of appeals decision that the administrative rules were invalid:

In 2008, the department amended its administrative rules regarding the scope of that recovery. The amended rules allow the department to recover the payments from assets that the recipient had  transferred to a spouse up to five years before a person applies for Medicaid. Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals. The Court of Appeals agreed with petitioner that the amendments were invalid ... and the department sought review. As we will explain, we conclude that the rule amendments are invalid under ORS 183.400(4)(b) because they exceed the department’s statutory authority. Accordingly, we affirm the Court of Appeals. (citations omitted).

After reviewing state family law and probate law (elective share) and the arguments advanced by the Department of Human Services, the Oregon Supreme Court concluded

The department promulgated rule amendments that allow it to obtain estate recovery from transfers made to a spouse within the five years before a person applies for Medicaid. Our standard for judicial review is whether the department exceeded its statutory authority ..., and more specifically whether the rule amendments depart from a legal standard expressed or implied in the particular law being administered.... Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department’s statutory authority..... The Court of Appeals correctly held the rule amendments to be invalid. (citations omitted).

The opinion is available here.

Congrats Tim and thanks for letting us know!

December 26, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, December 25, 2016

National Center for State Courts--Adult Guardianship Initiative

The National Center for State Courts, in conjunction with the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) released its Strategic Action Plan 2016 Adult Guardianship Initiative which was adopted on December 1, 2016.  According to the report "[t]he mission of the Adult Guardianship Initiative is to improve state court responses to guardianship and conservatorship matters. This Initiative encourages the use of less restrictive alternatives, the prioritization of the protected person’s individual rights, active court monitoring and oversight, the modernization of processes, and the restoration of rights."

The initiative has 4 goals:

  1. Develop and maintain a partnership of key stakeholders ...
  2. Prioritize the protection and enhancement of individual rights ...
  3. Promote modernization and transparency in the guardianship process ...
  4. Enhance guardianship/conservatorship court processes and oversight ...

The initiative also lists several concept projects: (1) Funding and Implementing a Guardianship Court Improvement Program; (2) Conservatorship/Guardianship Accountability Project: Building a National Resource that uses Technology and Analytics to Modernize the Process; (3) National Summit for Courts on Improving Adult Guardianship Practices; (4) Establishing Judicial Response Protocols to Address Guardianship Abuse, Neglect and Exploitation; (5)Developing a Mentor Guardianship Court Program; and (6) Building a Research Portfolio and Developing Court Performance Management Systems.

Visit the Center for Elders and the Courts for more information.

December 25, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, December 22, 2016

Electronic Registry for California POLST

Kaiser Health News reported that "a coalition of emergency and social service providers is working to create an electronic registry for POLST forms so they will be available to first responders and medical providers when they are needed. The group is starting with a three-year pilot project in San Diego and Contra Costa counties that could serve as a model for a single, statewide registry. Paper-based POLST forms are used across the nation, but electronic registries exist only in a few states, including Oregon, New York and West Virginia."

The article, California Tests Electronic Database For End-Of-Life Wishes, explains that the registry is envisioned as a cloud-based portal where the providers would load the forms. The advantage, of course, is that the provider would have access to the POLST regardless of the patient's location.  Since multiple agencies are involved, there are some hurdles to overcome to make this a reality.  One expert quoted in the article prefers that the registry be expanded to include advance directives as well as POLST forms.

 

December 22, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, December 21, 2016

Colorado Medical Aid-in-Dying Law In Effect

Last week Colorado's governor signed the medical aid-in-dying bill on December 16, 2016.  The law went into effect immediately, according to an article in the Denver Post, Colorado medical-aid-in-dying law signed by Gov. John Hickenlooper, takes effect immediately. The law had strong support from voters. The week before the Governor signed the bill into law, the Denver Post ran an article that many folks in Colorado were already making inquiries about requesting the prescriptions. The article noted that the request form for those patients with terminal illness has been made "available on the Compassion & Choices website. The Colorado Department of Public Health and Environment will keep the form, along with an attending-physician form, and track the number of people who seek to use the law."

December 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, State Statutes/Regulations | Permalink | Comments (0)

Thursday, December 15, 2016

Pot Popular with Boomers?

Kaiser Health News (KHN) reported on a study about use of pot by Boomers. Seniors Increasingly Getting High, Study Shows explains the results of a recent study:

Baby boomers are getting high in increasing numbers, reflecting growing acceptance of the drug as treatment for various medical conditions, according to a study published Monday in the journal Addiction.

The findings reveal overall use among the 50-and-older study group increased “significantly” from 2006 to 2013. Marijuana users peaked between ages 50 to 64, then declined among the 65-and-over crowd.

The article notes that the researchers call for more study regarding the long-term effects of the use of pot and that health care providers should be careful to not assume that an elder doesn't use drugs: "Joseph Palamar, a professor at the NYU medical school and a co-author of the study, said the findings reinforce the need for research and a call for providers to screen the elderly for drug use... 'They shouldn’t just assume that someone is not a drug user because they’re older,” Palamar said."

The article discusses the disparity of approaches between states that have legalized marijuana use and the federal government position. 

The push and pull between state and federal governments has resulted in varying degrees of legality across the United States. Palamar says this variation places populations at risk of unknowingly breaking the law and getting arrested for drug possession. The issue poses one of the biggest public health concerns associated with marijuana, Palamar says.

But unlike the marijuana of their youth, seniors living in states that legalized marijuana for medicinal use now can access a drug that has been tested for quality and purity, said Paul Armentano deputy director of NORML, a non-profit group advocating for marijuana legalization. Additionally, the plant is prescribed to manage diseases that usually strike in older age, pointing to an increasing desire to take a medication that has less side effects than traditional prescription drugs.

The full article, Demographic trends among older cannabis users in the United States, 2006–13 is available for a fee here.  The abstract explains

Background and Aims

The ageing US population is providing an unprecedented population of older adults who use recreational drugs. We aimed to estimate the trends in the prevalence of past-year use of cannabis, describe the patterns and attitudes and determine correlates of cannabis use by adults age 50 years and older....

Findings

The prevalence of past-year cannabis use among adults aged ≥ 50 increased significantly from 2006/07 to 2012/13, with a 57.8% relative increase for adults aged 50–64 (linear trend P < 0.001) and a 250% relative increase for those aged ≥ 65 (linear trend P = 0.002). When combining data from 2006 to 2013, 6.9% of older cannabis users met criteria for cannabis abuse or dependence, and the majority of the sample reported perceiving no risk or slight risk associated with monthly cannabis use (85.3%) or weekly use (79%). Past-year users were more likely to be younger, male, non-Hispanic, not have multiple chronic conditions and use tobacco, alcohol or other drugs compared with non-past-year cannabis users.

Conclusions

The prevalence of cannabis use has increased significantly in recent years among US adults aged ≥ 50 years.

December 15, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, November 22, 2016

Block Grants for Medicaid-How States Might Fare?

We blogged earlier about the discussion regarding switching Medicaid to block grants. The impact of doing so would be far reaching and the Commonwealth Fund released an issue brief, What Would Block Grants or Limits on Per Capita Spending Mean for Medicaid?

Here is the abstract from the issue brief:

Issue: President-elect Trump and some in Congress have called for establishing absolute limits on the federal government’s spending on Medicaid, not only for the population covered through the Affordable Care Act’s eligibility expansion but for the program overall. Such a change would effectively reverse a 50-year trend of expanding Medicaid in order to protect the most vulnerable Americans. Goal: To explore the two most common proposals for reengineering federal funding of Medicaid: block grants that set limits on total annual spending regardless of enrollment, and caps that limit average spending per enrollee. Methods: Review of existing policy proposals and other documents. Key findings and conclusions: Current proposals for dramatically reducing federal spending on Medicaid would achieve this goal by creating fixed-funding formulas divorced from the actual costs of providing care. As such, they would create funding gaps for states to either absorb or, more likely, offset through new limits placed on their programs. As a result, block-granting Medicaid or instituting “per capita caps” would most likely reduce the number of Americans eligible for Medicaid and narrow coverage for remaining enrollees. The latter approach would, however, allow for population growth, though its desirability to the new president and Congress is unclear. The full extent of funding and benefit reductions is as yet unknown.

The article provides history, data and discusses strategies. The Brief concludes that the issue, and the resulting outcomes, are not as simple as may be presented.

As the country’s largest insurer, Medicaid is subject to the same cost drivers that affect all providers of health insurance: population growth and demographic trends that increase enrollment, health trends that influence how often people need care and what kind of care they require, and advances in technology that drive up costs, among other factors. But unlike commercial insurers, government-funded Medicaid, in its role as first responder and safety net, is more vulnerable to these trends and to cost increases. For more than 50 years, Medicaid has been rooted in a flexible federal–state partnership, constantly restructured over time to meet current challenges.

Any attempt to restructure federal financing for Medicaid and replace flexibility with strict spending limits—whether in the form of block grants, per capita limits on spending, restrictions on what counts as state expenditures, or a combination of all three—would divorce funding considerations from the real-life needs that have informed federal and state Medicaid policy for half a century. Crucially, a per capita cap would permit population growth to occur. But the limit of lawmakers’ appetite for continued growth in enrollment is unclear. Given how states responded to the relatively mild and temporary funding reductions the federal government enacted in 1981, sweeping changes like those currently under consideration are likely to produce far more substantial fallout.

The 10 page issue brief can be downloaded as a pdf here.

November 22, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)