Elder Law Prof Blog

On Stage: "The Velocity of Autumn" by Eric Coble

One of my favorite theaters is the Arena Stage in Washington D.C.  It's an intimate space, with highly professional actors, often appearing in brand new plays or interesting revivals.  The theater itself received a Tony award in 1976, in recognition of its role as a trailblazer, outside of Broadway.

This weekend I saw a new production, "The Velocity of Autumn," starring Estelle Parsons as Alexandra, an elderly widow who refuses to go gentle into that good night. She is determined to stay in her New York brownstone -- no nursing home for her -- arming herself against the good intentions of family with Molotov cocktails and a barricade worthy of the French Revolution.  Alexandra's plan is frustrated by the return of her long-missing youngest son, the only one who remembers how to climb his mother's favorite tree to sneak in through a window. 

The conversation between mother and grown son is wry, poignant and often laugh-out-loud funny. On aging, Alexandra confesses that one surprising pleasure is being able to reread favorite mystery novels, because she no longer has any memory of who dunnit.   

It is a very New York kind of play, which should help it on its way to a planned Broadway premiere.  Even in D.C. there were lots of knowing chuckles at the inside jokes about Brooklyn.  And for the Elder Law Prof, there was an interesting little plot device that centered on powers of attorney.

But what most struck me was the fact that Estelle Parsons at 85 actually seemed too young to play the role of a creaky senior, a character of age 79.  Parson's physical strength -- strong, unbowed back and gently muscled biceps -- was at odds with the character's complaints about growing frailty.  This physical fact isn't a serious problem for the play.  All the lines still work, and Parson's timing on the clever lines was spot on.  But isn't it nice to see a woman of 85 as just a bit too vibrant to play a credible elder? 

The play is scheduled to run at Arena Stage through October 20.  

Related articles

Theater Review: "The Velocity of Autumn" at Arena Stage

Photo Flash: Estelle Parsons, Stephen Spinella & More Celebrate THE VELOCITY OF AUTUMN's Opening Night!

Stanford University's Center on Longevity Offers Design Challenge for Students

September 24 is the kick-off date for a world-wide Design Competition offered by Stanford's Center on Longevity.   The Stanford Report explains the competition is intended to encourage innovation that helps the rising tide of seniors:

"The design contest solicits entries from student teams worldwide and is aimed at finding solutions that help keep people with cognitive impairments independent as long as possible."

The final presentations are scheduled for April 2014 with judging by a panel of academics, industry professionals, nonprofit groups and investors.  The competition offers prizes, including the top prize of $10,000.

Hat tip to Professor Laurel Terry, for news on this interesting challenge.   

If You are Young, We Want You.

Naomi Cahn forwarded to me (thanks Naomi)  a link to a recent article in the Washington Post by Reid Wilson, titled The Northeast is Getting Older, and it’s Going to Cost Them. According to the Census Bureau, something you may not realize, the majority of our oldest citizens live in the Northeast, and along with their aging comes an increased need for health care, transportation as well as housing. In this era of tight budgets, state leaders are trying to figure out how to pay for these services, and are coming to the decision: "the way to pay for the elderly is to cater to the young."

Medicare SNF Coverage

The three day hospital stay prereq for Medicare SNF coverage has been problematic for many beneficiaries, especially with the use of observation status by health care providers..  We talked about this problem in an earlier post, and mentioned the recommendation of the federal Long Term Care Commission that the 3 day stay be eliminated. The Journal of American Medical Association (JAMA) published a Viewpoint article by Dr. Lewis Lipsitz  on September 16, 2013 on The 3-Night Hospital Stay and Medicare Coverage for Skilled Nursing Care. This article offers two patient scenarios, reviews the history of the rule, discusses recent waivers and today's challenges, and concludes that "there is justifiable concern that this rule contributes to suboptimal care and increased costs attributable to avoidable hospitalizations. There is a critical need to update payments and policies that address conditions that cause avoidable hospitalizations."

Among the recommendations in the article, Dr. Lipsitz suggests that "[r]ather than rely on the 3-night stay to identify appropriate patients for skilled nursing and rehabilitative services, ... [CMS] could implement specific functional criteria for [SNF] care, such as an acute decline in mobility, impairment in [ADLs] ... , or presence of delirium, and use the savings from reduced hospitalizations to provide appropriate payments for home-based and nursing home–based treatments."

Becky Morgan

Stetson Law

Google, Google, Google....looking for the fountain of youth

Via the L.A. Times:

Google announced earlier this week that that it's a major investor in a venture that would work on combating aging and disease. But Google declined to provide any more details on how the venture would operate or what it would do.  Google is not the first technology company to make the leap into healthcare. The search for the fountain of youth — and health — has long been a great obsession in Silicon Valley.

The project is being led by biotech pioneer Arthur Levinson, chairman of the boards of Apple Inc. and Genentech Inc. Levinson, the former chief executive of Genentech and a Google board member, was named the CEO and founding investor of the California Life Co., or Calico. He will report to Larry Page, Google's chief executive and a major supporter of Calico.

Harvard Business School professor Regina Herzlinger said previous efforts to mine vast amounts of data "has yet yielded huge payoffs in healthcare."  But Google may have the clout to speed medical breakthroughs and push change in an American healthcare system deeply resistant to it, she added.

 

Related articles

Arthur Levinson Talks About Calico, Google's New Death-Fighting Company

Google vs. Death

Calico: Google's latest 'moonshot' targets aging

An Irish Phrase in Action? "Safe Home" for Alzheimer's Individuals

Last summer, great friends from Ireland were visiting in Pennsylvania.  At the end of an evening's gathering, Clare, Joe or one of their sons would often wish me "Safe home."  What a warm salutation -- for everyone.

Thinking more about the Goodman case from my earlier blog post, one question is whether all options were explored by the police, short of arrest.  It is hard to accept that the man's arrest for "loitering" was the only solution available.  Here was an individual whose confusion and late night wandering merely led him to the wrong house.  In many jurisdictions, including the state in question, the crime charged, loitering, has been held unconstitutional as applied.  But however wrong the crime charged in this case, shouldn't there be better options for "safe home?"

At least one option does exist: MedicAlert joined with the Alzheimer's Association to offer "Safe Return," a 24-hour emergency response service for persons with Alzheimer's or other cognitive impairments.  The program works in two directions:  The worried family member or caregiver can call a toll-free number to report the missing person, providing a source of reliable information for law enforcement about the individual's condition, health concerns and family.  Plus, anyone encountering a wanderer who is wearing a MedicAlert bracelet or other ID can call the same toll-free number, thus initiating return to the "safe home."    

The MedicAlert+Alzheimer's Association's Safe Return program (names are trademarked) charges an initial fee for the identification jewelry and registration, plus a smaller annual renewal fee. (Any possibility for a lower initial fee for those in need?)  Perhaps health care professionals and elder law attorneys could offer this type of information to families during initial appointments.

Trends in Cancer Care at End of Life

The Robert Wood Johnson Foundation (RWJ) has published A Dartmouth Atlas of Health Care Brief on Trends in Cancer Care at the End of Life. The brief notes that "[s]ince the last Dartmouth Atlas report,… the trends in end-of-life cancer care across the country have been mixed …  While
patients are spending fewer days hospitalized in the last month of life, the number of days in ICUs has increased. Hospice days have also increased, but a growing proportion of patients begin receiving hospice services in the last three days of life, a time period often too short to provide patients the full benefit of hospice care."  The data that accompanies the report is available on the Dartmouth Atlas site.

 

 

High Speed Internet = Age-Friendly Cities?

AARP's September 4, 2013 blog by Christopher Baker had a great article on how high speed internet access gives cities a leg-up on being "age-friendly" communities.  The post notes that this access helps cities meet the challenges and take advantage of the opportunities that come from residents growing older. The post references a couple of reports from AARP's Public Policy Institute that supports the advantages of such connectivity, but goes on to note that for many communities, the infrastructure doesn't exist: some areas don't have access, others that do offer slow and costly access and there is little incentive for companies to expand in some areas. 

We shouldn't forget as well that even in areas where connectivity is available, a person who is older may not be able to afford the access or even have a computer.

Becky Morgan

Stetson Law

New Classroom Text for Elder Law: Nina Kohn's Elder Law: Practice, Policy and Problems

Professor Nina A. Kohn's new text, Elder Law: Practice, Policy and Problems, is now available for review from AspenLaw (the "red book" folks).   

Congratulations, Nina!  I look forward to seeing this new resource. 

UPDATE:  I've corrected the new book's title based on information from Nina.  Apparently the editors overlooked the author's preference for alliteration!  

New DOL Rules will assure minimum wage and hour protections for most home care workers

The Department of Labor has issued new regulations ensuring that, effective January 1, 2015, most direct care workers will be entitled to receive federal minimum wage and overtime pay protections.  Direct care workers are workers who provide home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions.  The rules are a response to the Supreme Court's 2007 decision in LONG ISLAND CARE AT HOME, LTD. v. COKE (No. 06-593) , 462 F. 3d 48 (2007), in which the Court upheld an exemption to wage and hour laws for many domestic workers. 

DOL has set up an area within its website explaining the effect of the new rules on workers, employers, and individuals needing home care.  Check out the new rules and the website here.

Related articles

New FLSA Home Health Care Rule

Home care workers win minimum wage protection

Nearly 2 million home care workers to get minimum wage and overtime protections

Building for America's Bravest Project

We have previously discussed the use to technology to allow people to age in place and have more autonomy.  Technology and smart homes don't just benefit people who are older.  The Building for America's Bravest Project (BFAB) is a "program of the Stephen Siller Tunnel to Towers Foundation in partnership with the Gary Sinise Foundation... to raise funds to build custom designed, specially adapted homes for the most catastrophically injured American service members."

Consider the origins of this foundation: 

FDNY father of five, Stephen Siller was on his way to meet his three brothers ... When he heard on his scanner what had happened at the World Trade Center, brave Stephen strapped on 60 lbs. of firefighter gear, rushed on foot through gridlocked traffic and ran from the Brooklyn Battery Tunnel to the World Trade Center site. Stephen was last seen with his brothers of Squad 1; all of whom died saving others.

Stephen’s loved ones organized the Stephen Siller Tunnel to Towers Foundation. The organization helped establish the Tunnel to Towers Run, a ... tribute to all that died on 9/11 and to those who serve in the line of duty to protect our country... [and] evolved into ensuring that honor and service is provided to the brave men and women serving in America’s recent wars, as well as our courageous first responders who serve domestically each and every day. In 2011, the Tunnel to Towers Foundation officially began the Building for America’s Bravest program (BFAB) to provide a specially adaptive home for the first ever quadruple amputee to survive, Army Specialist Brendan Marrocco. By the end of 2013, BFAB has the goal to have completed or broken ground on 23 Smart Homes for veterans across the country.

Each home is customized for the needs of the service member. Access the website to read more and learn about some of the service members who have been recipients of homes.

This project ROCKS!

Becky Morgan

Stetson Law

More on Same Sex Spouses' Benefits

As far as eligibility for Social Security spousal benefits, what happens to couples who live in states that do not recognize same-sex marriages or have state versions of DOMA?  According to a September 9, 2013 update from SSA, Benefit eligibility for couples in states that prohibit or do not recognize same-sex marriages or other legal same-sex relationships, individuals are urged to apply ASAP while SSA works out policy and processing issues with DOJ.  Since the filing date is used as the start date for benefits when approved, SSA recommends applying even if the applicant isn't certain of eligibility for benefits.

Becky Morgan

Risk & Resiliency Internship Project-NYC Elder Abuse Center (NYCEAC)

The blog post from the NYCEAC on September 12 discussed a very cool project,  the Risk and Resiliency Project (RRIP) that NYCEAC does with the Legacy Project. The internship allows undergrads for 7 weeks in the summer to examine elder abuse and neglect issues along with the positive strengths of adults who are elderly. The purpose of the internship program is:

to bring the invaluable lessons of older adults to tomorrow’s elder justice leaders. RRIP is specifically designed to educate undergraduate students about the value of older adults as well as the different types of abuse that can occur later in life. The resiliency side of the program brings interns and older adults together through use of The Legacy Project’s structured interview method. Using this scripted protocol, interns will facilitate dialogues with older adults about their lives and experience, ultimately learn about the value of older adults as an inspiring source of wisdom. The risk part of the program focuses on the many angles of elder abuse, providing interns with the opportunity to learn how to respond to elder abuse first hand by attending NYCEAC trainings, case management meetings, and multidisciplinary case conferences.

You can read more about the interns' experiences as well as view short videos here and commentary from the 2013 interns can be found here.

Applications for the 2014 internships will be taken starting in January of 2014.

BTW, while we are mentioning the Legacy Project, be sure to check out their website.  The project was created in 2004 by Professor Pillemer at Cornell, who began to collect "the practical advice for living of America’s elders... [and] has systematically gathered nearly 1500 responses to the question: “What are the most important lessons you have learned over the course of your life?” People from across the country in their 70s and beyond shared their wisdom for living. ... [with] advice ... from how to be happy on a day-to-day basis, the secrets to a successful marriage, tips on raising children, ways to have a fulfilling career, strategies for dealing with illness and loss, and how to grow old fearlessly and well."

I'm all about that!

Becky Morgan

Stetson Law

CDC Releases Major Report on Antibiotic Resistence Threats

In the United States alone, some 23,000 people die each year from infections casued by bacteria that are resistent to antibiotics.  That's just one important statistic from the report released this week by the Centers for Disease Control and Prevention (CDC).  Antibiotic resistant infections can affect any age, but why is this also a major "elder" issue?  Becaue nursing homes and hospitals -- and their residents or patients -- are on the front lines of the battle with resistaint strains.  For more on the chilling history and the CDC's call for action, see here. 

The CDC website is a great source for information on Healthy and Safe Aging, including video segments useful to spark class discussions. 

Update:  The CDC report and measures to control overuse of antibiotics will be the topic of a panel discussion on The Diane Rehm Show on public radio on September 18, 2013.

Related articles

CDC calls for action on drug-resistant bacteria

More on the Long Term Care Commission

We posted previously (August 19th)  about the federal Long Term Care Commission's upcoming meeting. We are looking at the results of that September 12, 2013 meeting. The full report is coming out September 18th, but the summary and call for action are now available on the Commission's website.  This is very important information and I hope everyone will read these materials in their entirety as well as the full report, but for now, here is my synopsis.

The summary of the recommendations covers 4 topics: (1) service delivery, (2) workforce, (3) financing and (4) National Advisory Committee on LTSS.    Service delivery has a number of recommendations, broken down by subcategories: rebalancing, integration, uniform assessment, consumer access/assistance, quality and payment reform. The titles for the recommendations tell us a lot, including the use of technology, livable communities, a standard and simplified assessment, streamlined access to services, and new models for payment.

Workforce has 4 recommendations for family caregivers, 2  for paid caregivers and 4 for the direct care caregivers.  I thought the family caregiver recommendations are important, but we have to consider the other reports we have seen on the availability of family caregivers and the "caregiver support ratio" we discussed in an earlier post. It seems to me that the other two categories are looking to emphasis quality of care.

Finance offers a vision (sustainable balance between public and private payment for LTSS)  and 2 alternatives, with 2  recommendations each for Medicaid and Medicare. For Medicaid-they recommend a demonstration project for those individuals with disabilities who can work while still keeping LTSS coverage, and more state uniformity on buy-ins for those individuals. With Medicare, the two recommendations are quite concrete-eliminate the 3 day hospital prerequisite for SNF care and "reconsider" the homebound requirement for receiving home health services. There is also a recommendation under savings to allow individuals with disabilities or families to use money in an educational fund for LTSS. As far as the committee, the recommendations are pretty straightforward-keep a committee to make sure progress occurs and hold a White House Conference on Aging that covers, among other things, LTSS.

There have been some articles regarding the report, including one blog post from Judith Graham in the September 13th  New York Times New Old Age Blog that noted that the Commission "stopped short of endorsing a new public or private program to help families pay for home health care, custodial care, assisted living or nursing home services." The blog goes on to note a disagreement within the Commission: "[i]n a letter to President Obama and Congressional leaders ...  six ...  emphasized ... that 'the commission’s recommendations should not increase the existing budgetary commitment to health care faced by both state and federal governments'” and ... five ...  issued a statement strongly supporting a more robust publicly financed long-term care program."  The National Council on Aging's (NCOA) Howard Bedlin, VP of Public Policy & Advocacy issued a statement on September 13, 2013 commenting on the report, with support for some recommendations but expressing disappointment with the absence of unambiguous direction  for LTSS funding.

 

Becky Morgan

Stetson Law

Follow up: FEMA Wants Better Hurricane Alerts for People With Disabilities

Following up on Becky Morgan's post last week about natural disasters and older persons:

The Federal Emergency Management Agency wants to make its systems for alerting and communicating with the public during natural disasters more easily accessible by people with disabilities, contracting documents show.  A solicitation posted in late August focuses on transmitting FEMA’s Integrated Public Alert and Warning System, or IPAWS, alerts to people with disabilities in hurricane-prone states. It would also include determining how local emergency managers are currently using social media to communicate with people with disabilities.  The contract will include integrating technology into existing emergency alert systems that make them more handicapped accessible. The contractor will also be tasked with figuring out how these alerting systems can be retrofitted for people who are illiterate or who don’t have a strong grasp of English.

The contract also includes developing handicapped-accessible options for mobile phone alerts and for social media communication during hurricanes and other emergencies.

Read more here.  

Related

Elderly Need Special Plans To Be Ready For A Disaster

Disaster Preparedness Guide for Elders

Disaster Planning for Elderly and Disabled Populations

 

Painting by Kim Dayton.

What If This Man Were Your Father or Husband? Looking at Dementia in the Criminal Justice System

While preparing for a Neurology Grand Rounds presentation on "Dementia and the Law" at Penn State Hershey, I read the 11th Circuit's decision in Goodman v. Kimbrough, affirming summary judgment in favor of defendant jail officials.  The June 2013 decision in this civil rights claim has me asking questions.  I suspect the case could provide opportunities for important discussion in a large number of law school courses.  As our blogging partner Becky Morgan would say, an opportunity for teaching elder law "across the curriculum," although a pretty disturbing opportunity. 

Basic facts:  A 67-year-old man "suffering from dementia and prone to disorientation and confusion," was severely beaten by his cell mate while detained in a jail in Clayton County, Georgia.   Why was he in jail?  He apparently wandered away from his home at night, became confused, and "attempted to gain entry to another trailer."  No indication in the opinion of breaking and entering.  No indication in the opinion of violence.  The man was "arrested for loitering and brought to the Jail."  That bears repeating:  "loitering."

The man's wife of more than 30 years, after awakening to find her husband gone, called 911 and learned of her husband's arrest.  She went to the jail and "showed the officer at the second-floor desk her husband's medical records, explained that he was cognitively impaired and showing signs of dementia."  Further, the wife:

"asked the officer to ensure that her husband received his medication and that he be placed either in the infirmary or in isolation so that he would not unintentionally insult another inmate and thereby come into harm's way."

While the timing of some events is not clear from the opinion, on the critical morning in question, when the jail officials opened the man's cell at 5 a.m. to deliver breakfast, they found him "covered in blood," with contusions on his face, eyes swollen shut, and the cell "laden with blood."  His injuries were severe, requiring hospitalization in intensive care. Eventually, the jail's investigation determined the man had been beaten by his cell mate. 

The 11th Circuit opinion criticizes the conduct of the jail guards in failing to make required hourly cell checks throughout the night and reportedly deactivating the emergency button of another detainee who testified he tried to alert the guards to the sound of the fight coming from the cell.  In affirming summary judgment, the court concluded, however, that the plaintiff failed to offer the necessary evidence that the two guards "subjectively knew of a substantial risk of serious harm."

As I continue my preparation to talk with medical professionals about dementia and the law, I keep coming back to the question:  "What if this man were your father or husband?" As our population ages and families struggle 24/7 to cope with dementia while keeping loved ones at home, we need better understanding of the condition at all levels. At a minimum there needs to be much better communication about dementia in the criminal justice system, especially if there is to be any justice from the system. 

National Consumer Voice for Quality Long-Term Care publishes "Hall of Flame"--SNFs lacking adequate fire sprinkler systems

Consumer Voice has published a list of nursing homes that are currently non-sprinklered or partially sprinklered. Below are ways in which consumers and advocates can hold these facilities accountable and let the public know what homes are NOT providing residents with basic fire safety.

Action Steps

For citizen advocacy groups, ombudsman programs and individual advocates

·        Publish the list on your website

·        Print  the list in your newsletter

·        Email the list to your network, friends, family

·        Send the list to your local newspaper

·        Give the list to potential nursing home residents and their families

For future nursing home residents and their families

·        Avoid homes on the list if possible

·        If you need to consider one of these homes, ask the administration or staff these three questions:

o   Why aren’t you fully sprinklered since you’ve had  5 years to prepare?

o   When WILL you be fully sprinklered?

o   What are you doing to protect residents until you’re fully sprinklered?

For current nursing home residents and their families

·        Ask the three questions above.

More resources:

• GAO Report, Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in Federal Standards and Oversight (2004)
• USA Today Article, Many Nursing Homes Run Risk of Catastrophic Fires (by Peter Eisler, 2005)

 

Related articles

New Federal Rule Highlighted After Fire Sprinkler System Saves Residents at Illinois Nursing Home Fire

CMS Maintains 8/13 Deadline for Installation of Nursing Home Automatic Sprinkler Systems

A Virtual Mother?

It is only a matter of time...

Remember how your mother would dispense advice such as "don't run with scissors", "eat  your vegetables, they're good for you", "don't sit too close to the TV", "wear clean underwear when you go out in case you get into an accident",  "don't go swimming for two hours after you eat or you will get a cramp and drown", and "be sure to look both ways before crossing the street"...  But as we grew up, we went places and lived places without our moms, although those pearls of wisdom stuck with us and maybe we even found ourselves channeling our moms with our own kids, dispensing the same advice (although I can see something of an updated version, like "don't hold your tablet too close to your face as you will ruin your eyesight", "don't text and drive" (as if we really need to be told that one) or "don't text and walk", although I think the "don't run with scissors" and "eat your vegetables" ones are likely ageless.

I read a September 8, 2013 post by Laurie Olov on her Aging in Place Technology Watch about The Wireless Health market is ginormous -- so forecasters say.  Ms. Orlov writes in her blog about a mythical person, John X. Wannabee, who has wearable technology  that will help him have a healthier life while lowering his health care costs. She gives examples: it will remind him to slow down when he is exceeding the speed limit, look both ways before stepping off the curb, tell him his shoe is untied and chastise him for forgetting to eat breakfast. The point of Ms. Orlov's blog post was  about the wireless health technology market and investing. By the way, if you don't read her blog, you should add it to your must-reads (after this blog, of course!)

So, that got me thinking...there are fitness devices that keep track of what we are doing, how many calories we are burning, and if we are achieving our goals (I like to think of this as a virtual cheering section). We have all kinds of technologies to make our lives better and to remind us of things that make us healthier.  We are  moving to a time where, like Will Robinson, we will have our own robots saying "danger,  (insert name)."

So it didn't take me long to realize that there are expanded applications for wearable  technology  beyond those mentioned in Ms. Orlov's post. It seems like the potential is endless.  I like to think of  my vision of  health wearable technology as "a virtual mother." Can't you just see it telling you to put back the junk food at the grocery store and head to the fruits and vegetables aisle? Imagine if you wore the technology on a date... 

I  am waiting for its availability and marvel at the potential of having a virtual mother constantly dispensing advice. (and maybe we can personalize its "voice"....)

Becky Morgan

Photo ©2013 by Kim Dayton.

New York City, Two Wills, 100+ Year-Old Testator, $300 Million Estate: Can You Guess Where This is Going?

Bingo.  Although this time the court case (cases?) is not about Brooke Astor.  This time the tragic subject is another heiress, the reclusive Huguette Clark.  The will contest case is scheduled to start jury selection on September 17. 

Thanks to Professor Ann Murphy, Gonzaga School of Law, for pointing us to the September 15 New York Times article by Anemona Hartocollis, "The Two Wills of the Heiress Huguette Clark."

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