Elder Law Prof Blog

Yet Again on D.C.'s Physician-Aided Dying Law

So, here we are again. Efforts underway at the federal level to repeal the D.C. aid-in dying law. The Washington Post reported that the House of Representatives voted to repeal the law. House votes to repeal D.C.’s Death With Dignity law; Senate has yet to act explains that "[t]he U.S. House on [September 14, 2017]  passed a spending bill that would block five laws affecting the District of Columbia, including the city’s new assisted-suicide law." This is not the first attempt at the Congressional level to repeal the law but it is "the first time either congressional chamber has voted to repeal the District’s Death With Dignity Act...  [and] District officials are watching for action from Sen. James Lankford (R-Okla.), who tried unsuccessfully to block the assisted-suicide bill earlier this year and is now chairman of the Senate Homeland Security and Governmental Affairs subcommittee with jurisdiction over the District."

Stay tuned...

"CHRONIC" - Senate Bill 870 Passes Senate With Bi-Partisan Support - Is It Significant?

On Tuesday, September 26, 2017, at the same time that there was much sound and fury, but no vote, on the Graham-Cassidy Senate effort to repeal Obamacare, the U.S. Senate quietly approved on a voice vote Senate Bill 870, titled "Creating High-Quality Results and Outcomes Necessary to Improve Chronic Care Act of 2017"or "CHRONIC Care" for short.  

The vote sends the bill on to the House for any next step of action. In press releases after the vote, sponsors welcomed Senate passage as a sign of bipartisan support for "strengthening and improving health outcomes for Medicare beneficiaries living with chronic conditions," noting:  

“This bill marks an important step towards updating and strengthening Medicare’s guarantee of comprehensive health benefits for seniors,” said [Oregon's Senator Ron Wyden,] the ranking Democrat on the Senate Finance Committee. “Medicare policy cannot stand idly by while the needs of people in the program shift to managing multiple costly chronic diseases,” Wyden said. “This bill provides new options and tools for seniors and their doctors to coordinate care and makes it less burdensome to stay healthy.”

The bill that passed the Senate on Tuesday was co-sponsored by Senate Finance Committee Chairman Orrin Hatch (R-Utah), as well as Sens. Johnny Isakson (R-Ga.) and Mark Warner (D-Va.)

Initial review of the modestly ambitious bill shows that if passed in full by the House, the legislation would extend by 2 years the "Independence at Home Demonstration program," now in its 5th year, with funding otherwise set to run out at the end of September.  Additional provisions address "telehealth" services and direct studies or accounting reports on Medicare Advantage plans.  

The Independence at Home Demonstration program seems worthy of additional operation and tracking, as at least on paper it trends towards what most people seem to want, i.e., better health care access while still at home, rather than waiting for facility-based services.  For more on preliminary outcomes from the Demonstration program, see "Corrected Performance Results" from Year 2, released in January 2017.  

On the other hand, it is difficult to resist the irony that a great deal of work seemed to go into crafting the acronym, "CHRONIC," which also happens to be the street name for "very high-quality marijuana."    

 My special thanks to my newest Dickinson Law colleague, Professor Matthew Lawrence, who comes to us with fabulous experience in health care law, for helping identify this active piece of legislation.  

Substance Abuse and Elders-It's Not Just Pills

Recently Experience, the magazine for the American Bar Association's Senior Lawyers Division, ran a cover story on opiod use and elders.  The Hidden Epidemic: Opioid Addiction Among Older Adults  (subscription required) opens with sobering statistics

Currently the leading cause of injury-related deaths among adults, the opioid crisis has engulfed rural America, spread across our cities, and inundated suburban communities. Despite national alarm, the tidal wave of drug-related deaths continues.

Recent estimates from the National Center for Health Statistics indicate that roughly 52,000 drug-related overdoses occurred in 2015, and more than 60 percent of these were related to prescription opioids or illicit opioid drugs. More telling perhaps is the impact of this carnage on life expectancy, with the United States experiencing its first decline in life expectancy since 1993—the height of the AIDS epidemic.

Let's get more specific, looking at the data regarding elders:

Opioid-related patient visits among adults 65 and older more than doubled between 2006 and 2014, from 28.6 to 70.1 per 100,000, according to data from the Healthcare Cost and Utilization Project Nationwide Emergency Department Sample, which contain nearly one-fifth of all emergency department visits in the country. There’s been a 145 percent increase over the past 12 years.

In 2014, nearly 8 percent of all emergency department visits related to opioid dependence were made by adults aged 65 years and older, representing 36,776 patient visits nationwide, with nearly 70 percent of these visits resulting in hospital admission.

The article discusses risk factors and demographic breakdowns as well as challenges to identifying addiction.  Even ageist attitudes may be at play here.   The article also explains how the opioid crisis case me to be amongst elders. The explanations are interesting and illustrate how challenging it is to tackle this problem.

But opioids are not the only issue. Consider this article from the New York Times from September 14, 2017.  Alcohol Abuse Is Rising Among Older Adults  explains the scope of the situation:

Epidemiologists at the National Institute on Alcohol Abuse and Alcoholism last month reported a jarring trend: Problem drinking is rising fast among older Americans....

Their study, published in JAMA Psychiatry, compared data from a national survey taken in 2001 and 2002 and again in 2012 and 2013, each time with about 40,000 adults. Drinking had increased in every age group, the researchers found.

Those over 65 remained far less likely to drink than younger people — about 55 percent of older participants told interviewers they’d imbibed in the past year. Still, that was a 22 percent increase over the two periods, the greatest rise in any age group.

It's not just the numbers that matter, the article explains. The type of drinking also matters.   "[T]he proportion of older adults engaged in “high-risk drinking” jumped 65 percent, to 3.8 percent. The researchers’ definition: for a man, downing five or more standard drinks in a day (each containing 14 grams of alcohol) at least weekly during the past year; for a woman, four such drinks in a day."  Why is this happening? Some suggested today's elders are healthier so they keep up their drinking ways and they are more comfortable both with drinking and recreational drug use. One thing those folks may not realize--as we age we metabolize alcohol: "With each drink, an older person’s blood alcohol levels will rise higher than a younger drinker’s ... [and] older people have less muscle mass, and the liver metabolizes alcohol more slowly. Aging brains grow more sensitive to its sedative properties, too."  And don't forget medication and alcohol interactions.   The article stresses the importance of diagnosis and treatment.

We are looking at a public health crisis on these issues. How do we best respond?

 

It's All About Identity Theft These Days

This is not an elder law specific topic so if that doesn't interest you, stop reading now (we have plenty of elder law specific posts in the archives). It seems like every week (if not more often) we read about a data breach. The one gathering all the headlines right now is the Equifax breach, which I'm sure you all have heard about (unless you are one of the ones without power Post-Irma).  Having been a victim of ID theft and the Equifax breach, I'm a little wound up about these issues so forgive me if I get a little too "enthused" discussing this. Within 11 minutes today I got two agency emails warning me about ID theft. Social Security sent out a note about Protecting Your Social Security. Here are some suggestions from SSA:

• Open your personal my Social Security account....
• If you already have a my Social Security account, but haven’t signed in lately, take a moment to login to easily take advantage of our second method to identify you each time you log in. This is in addition to our first layer of security, a username and password....
• If you know your Social Security information has been compromised, and if you don’t want to do business with Social Security online, you can use our Block Electronic Access You can block any automated telephone and electronic access to your Social Security record...

The second email I got was a consumer alert from NAIC.  Identity Theft: Protect Yourself in wake of breaches, hacks and cyber stalkers explains

Big data is big business. But it can also lead to bigger headaches when large-scale breaches expose personal information. Large companies including insurers and credit bureaus have been the victims of cyber thieves who accessed private customer information. Most recently, the Equifax breach of could affect 143 million Americans.

Identity theft occurs when a person uses your personal information to commit fraud or unlawful activity. Using your social security number or date of birth, someone may open new credit card or bank account in your name, and even take out a loan using your personal information. Affected consumers can help protect themselves with identity theft insurance—or by using safeguards provided by the impacted company. The National Association of Insurance Commissioners (NAIC) offers these consumer protection tips.

The tips include what not to carry in your wallet, what to do if your identity has been stolen,  not to proactively protect yourself against identity theft and the pros and cons of purchasing identity theft insurance.

I'm just saying now... this isn't going to be the last time I write you about this.  Hopefully none of you will be in my boat.  Safe travels through cyber space.

"Assisted Living Compare" Database in the Works?

The federal Medicare website offers a"Nursing Home Compare" website, which provides useful information on Medicare and Medicaid certified skilled care facilities across the country.  The available information includes: 

• How nursing homes have performed on health and fire safety inspections
• How the nursing home is staffed with nurses and other healthcare providers
• How well nursing homes care for their residents

But, as we write about so often on this Blog, the majority of senior care occurs outside of nursing homes, with exponential growth in Assisted Living facilities.  Thus, it is interesting to hear that a commercial entity has announced it will soon offer access to data on assisted living places.  From McKnight's Senior Living News:  

“For the first time, the seniors housing industry will have a single source for assisted living asset analysis, reputation evaluation, portfolio monitoring, operator benchmarking, clinical analytics, market analysis and consumer education, with a key benefit being that the burden is not on assisted living providers to submit the data,” Arick Morton, CEO of VisionLTC, said in a statement.

 

“We've categorized the citations so you can see where areas of concerns are within the different assisted living facilities based on some of the citation standardization work that we've done,” Jessica Curtis, Formation Healthcare Group vice president of clinical systems and analytics, told McKnight's Senior Living.

Unfortunately, in the short run, it appears the database will be marketed exclusively to commercial players, including "operators, real estate investment trusts, lenders, investment groups and clients [of developer Formation Healthcare Group] who have expressed interest."  Curtis explained:  

“It will be a paid subscription-type service for them,” Curtis said. “As a future development opportunity, we certainly see the need for this type of information to be available for consumers and the general public, and so that may be a consideration for a future version,” she added.

For more, read "Nursing Home Compare-Like Site For Assisted Living to Launch Next Month."

Nursing Home Abuse: Reporting to Law Enforcement

Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident.  The Long Term Care Community Coalition  (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates

2017 Updates:
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:

https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/GuidanceforLawsAndRegulations/Downloads/Advance-Appendix-PP-Including-Phase-2-.pdf.

The overview explains that

The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.

The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.

The brief can be downloaded as a pdf here.

Rental Housing and Seniors -- the Live-In Care-Giver Problem?

Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment.  The landlord was fully aware of the situation.  Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time.  However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.  

What's the problem?  When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her.  Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.

Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease.  In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment.  The landlord didn't want a "demanding" resident!

The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.  

I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care. 

 

Video: Elder Law Attorney Uses Her Experiences to Explain Why Graham-Cassidy Repeal of ACA Isn't Right Answer

In a 3-minute YouTube video, Texas Elder Law Attorney Jennifer Coulter explains how the Affordable Care Act has affected her clients -- and herself -- in a positive way.  She makes a principled, compelling case for why "getting it right" on health care is far more important than political sound bites and rushed repeal measures.  

 

The Newly Redesigned Medicare Card

Some time back we told you that the Medicare card would be redone so beneficiaries' Social Security numbers no longer appeared on the cards. CMS has released the design for the new Medicare cards.  Still sporting the red, white and blue design, you will see that the Medicare number is different now-no more Social Security number!!!

Issuing new cards may sound like a simple thing, but it really is a big deal, when you stop and think about it, especially given the number of folks on Medicare.

Here is an excerpt from CMS to health care providers: 

Medicare is taking steps to remove Social Security numbers from Medicare cards. Through this initiative the Centers for Medicare & Medicaid Services (CMS) will prevent fraud, fight identity theft and protect essential program funding and the private healthcare and financial information of our Medicare beneficiaries.

CMS will issue new Medicare cards with a new unique, randomly-assigned number called a Medicare Beneficiary Identifier (MBI) to replace the existing Social Security-based Health Insurance Claim Number (HICN) both on the cards and in various CMS systems we use now. We’ll start mailing new cards to people with Medicare benefits in April 2018. All Medicare cards will be replaced by April 2019.

You may even notice a commercial or two about the change. For more information about the changes, click here

 

 

 

Embrace Aging

Do you consider yourself to be old? Well, if you are over 37, statistically you are old, according to an article in the New York Times, Feeling Older? Here’s How to Embrace It.  However, "S[s]udies show that people start feeling old in their 60s, and a Pew Research Center survey found that nearly 3,000 respondents said 68 was the average age at which old age begins." The article offers tips to embrace your aging, including having perspective about aging, be friends with various generations (helps with loneliness), and make decisions about "good" aging (for example, "[c]hoices about lifestyles and behaviors can influence the effects of so-called secondary aging.")  Aging is organic, but don't just let it happen-plan for it and make appropriate decisions! The article also offers these tip:s welcome the positives (identify activities that are enriching for you) and reject ageist notions. Age is a great equalizer-everyone ages, even without realization. For example, say it took you two minutes to read this post. You are now two minutes older. 

Various milestones — birthdays, changes in careers and the deaths of siblings and peers — are reminders of the passage of time, but you should not lose focus on finding meaning and quality in life, Mr. Kaplan ["assistant professor of social work at Adelphi University in Garden City, N.Y."] wrote.

“For many people, old age creeps up slowly and sometimes without fanfare or acknowledgment,” he wrote. “While most people enjoy relative continuity over the decades, being able to adapt to the changing context of our lives is the key to success throughout life.”

The "Well-Meaning Friday Child" Syndrome and Long-Distance Caregiving

There's an old rhyme that's been running through my head lately, the one about Monday's child (who was fair of face) and so on.  In the rhyme, "Friday's child is loving and giving."

I like to think of myself as Friday's child, even as I confess I don't quite live up to the standard of being truly giving.  For example, I haven't changed jobs or given up my job to be a more direct caregiver for my parents. I'm the child who flies across the country on long-weekends to my parent's home town, and tries to demonstrate my loving and giving nature by fixing all of their problems.  I have the "well-meaning Friday child" syndrome.  And there are a lot of us out there; I'm often seated next to someone attempting this same care mission on red-eye airplane flights.

Mostly, this pattern tends to drive my folks and my sister, who lives about 30 minutes from my parents' home, a bit crazy.  I rationalize my behavior by telling myself, "They asked me to fix XYZ problem!" But doing so on the run is often a less-than-successful strategy.  When my father was alive and still at home, he used to respond to my arrival with an immediate question, "when are you leaving?"  I used to try to explain away that response by thinking, "he just wants to know so that he can get in an extra ride to the airport, one of his favorite outings."  But now my mom is asking me the same question and she doesn't enjoy airport rides.    

Over time, one of the things I've learned is that rather than trying to impose solutions, it's better to use these short trips to identify options.  For example, as it became clear (at least to me) that my father might not be able to stay at home for the rest of his life, even with round-the-clock assistance, I suggested to my mother that we make a long list of different types of care settings and visit one each time I was home.  Sometimes we even saw two spots.  Sometimes we made a second visit to a spot we'd looked at earlier. Eventually my mother, worn out and worn down by the care needs of her husband, called me and suggested it "was time" to select a spot, and she already knew which spot was the right one. That process took more than eight months of visits.  It meant my sister, my mom and I needed to be on the same team for this big change.

The spot Mom chose -- one of the first on our visit list -- wasn't the fanciest, but it proved to be perfect for Dad.  The first few weeks were rough on everyone, but Dad did settle in and sometimes, out of the blue, he would say, "This is a wonderful place, isn't it?" For him it was actually a better place because he had five safe acres of freedom to roam, rather than being trapped in a multi-storied house that made movement much more dangerous and him more anxious. He calmed down, my mom calmed down, my sister got some breathing space, and I relaxed a bit on those still-frequent weekend visits.

Elder Law attorneys know all about the well-meaning child, and they tend to keep the decks clear on Fridays for the meetings with "out-of-town" children, often with one or both parents in tow.  The experienced attorney knows how to find the balance between "rush" and "enough time," in order to help families make the best decisions for the future.    

Coming Changes to Medigap Policies

The Chicago Tribune ran a story on changes to Medigap policies, Why Seniors Should Choose Wisely When Selecting Medigap Supplement Insurance. The article explains that

In 2020, people who are on Medicare and don't already have what's known as Plan F or Plan C Medigap insurance won't be able to buy it because the federal government will close those plans to new participants. That means that when people go onto Medicare at 65, or if they switch Medicare-related insurance during the next couple of years, they are going to have to be diligent about scrutinizing insurance possibilities before some of those doors start to close.

If you are wondering why this is newsworthy, given that there are a number of other Medigap plans available, the story explains the popularity of Plan F.

In the past, people have tended to veer toward Plan F Medigap insurance when they wanted all retirement medical costs covered. Plan F is the most popular of the many Medigap insurance plans because it is the most comprehensive. It doesn't cover dental, vision, or medicine, but if retirees pay their monthly premiums they shouldn't have to pay anything else for doctors, tests or hospitals. Even medical care overseas is partially covered.

The article notes that over half of beneficiaries purchase Plans C or F. Then why would Congress do away with these popular plans? Well, according to the article, "the popularity of Plans F and C made them unpopular with federal lawmakers and brought about the change that will happen in 2020. In 2015, Congress decided to shut the doors on Plan F and C in 2020 to reduce government spending on Medicare. Although Medigap plans are purchased from private insurance companies, people use them along with Medicare provided by the government. Critics argue that Plan F makes it too easy for people to go to the doctor without thinking twice about the cost."

Even if a beneficiary has Plan F, after 2020, the beneficiary may see a rise in premiums  "because the plan won't be taking in any more young, healthy people. As those in Plan F grow older and sicker, the insurance companies may go to government regulators and request the right to raise rates." The article notes that some advisers are suggesting beneficiaries take a hard look at Plan G. Of course, if Plan G becomes the new Plan F in terms of popularity, then it's likely that Plan G premiums will increase. One expert quoted in the article suggests that a Medigap policy be viewed as a lifetime choice and the beneficiaries need to be sure that the policy purchased is portable.

 

Call for Papers: Seton Hall Law's 2d Annual Health Law Works-In-Progress Retreat on 2/9/18

We just received the good news that Seton Hall Law School's Center for Health and Pharmaceutical Law & Policy will hold a second (now second annual!) "Regional Health Law Works-in Progress Retreat" in early 2018.  The purpose of the retreat is to give area health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting.  The retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the Northeast area (broadly defined to include Washington D.C. and all points north).

The retreat will take place on February 9, 2018 at Seton Hall Law in Newark, New Jersey, offering an opportunity for in-depth discussion of approximately 5-6 draft papers.  Professor Carl Coleman  explains:  "For each paper, a commentator will provide a 10-15 minute overview, as well as his or her reactions.  The author will then have 5 minutes to respond, after which the floor will be opened for a general discussion among all retreat participants."

For those interested in participating they should submit a preliminary draft or a detailed abstract to Professor Coleman at [email protected] by November 17, 2017.  So, plan ahead!  Professor Coleman says that those with submissions accepted for presentation will be notified by December 15. Final drafts are due by January 19, 2018.

By the way, while looking at the interesting materials on Seton Hall Law School's website, I noticed an timely program on "Consumer Financial Protection in Health Care," on the evening of Tuesday, October 24, 2017.  Seton Hall invites interested persons to join them "for a discussion about the growing body of financial protections under federal and state law for health care consumers and how we can work to protect all health care consumers from medical-billing abuses."  

 

Elder Homicides Webinar

The DOJ's elder justice initiative is offering a free webinar on Monday September 25, 2017 at 2 p.m. edt on The Forgotten Victims: Elder Homicides. Here is a description about the webinar

Elder homicides often go undetected, and investigating them requires a multi-pronged approach. In this webinar, learn about the victims, the offenders, and the crime scenes. How does the medical examiner’s information contribute to solving these high-profile, difficult cases? Join the webinar to discover how research has advanced the successful investigations of these crimes. 

To register for the webinar, click here

Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"

We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products.  For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.

Recently In Texas, two competitors have been arguing over the definition of assisted living.  

In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community.  Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.  

On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for  preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."

Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise.  Harbor hired a private investigator to pose as a prospective client for LTIL.  The investigator tape-recorded a sales representative for LTIL.  

Arguably, it  seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.

 During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . .  Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . .  She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.  

Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . .  Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help. 

 

One one level, the case demonstrates the level of competition that exists among companies marketing senior living properties to prospective residents.  Lots of providers are trying to be "the best choice" for aging adults.

 

But, on another level, the case shines a light on why states often do attempt to regulate senior care providers beyond the usual "nursing home" identity.

 

Without clear and enforceable rules about how a provider can market to the public, it seems likely that sales representatives could be tempted to fudge the line of what their facility offers, to match the prospective resident's desires about services and price.

 

Indeed, misrepresentation is at the heart of the allegations in the California class action case we discussed earlier this month, filed by care-needing residents against Brookdale Senor Living's "assisted living" operations, alleging unfair trade practices and consumer rights violations.  

Things to Watch for in ALF Contracts

Consumer Reports published an article that focuses on the terms of an ALF admissions contract.  Putting the Assisted Living Facility Contract Under a Microscope  starts with recommending that an elder law attorney review the contract before the client signs it.  The article lists 4 key areas to examine, including responsible party provisions, costs of care, mandatory arbitration clauses and grounds for discharge.  The article offers advice and things to look for within each of these areas.  Among others, the article quotes Hy Darling, current president of NAELA and Shirley Whitenack, former NAELA president.

"Barn Door" Rule-Making and Disaster Response

Over the weekend, Florida Governor Rick Scott announced he was "directing" state agencies to "issue emergency rules to keep Floridians safe in health care facilities during emergencies."  Arguably, this an example of  locking the barn door after the horses have escaped.  On the other hand, especially with another hurricane already looming, certainly no political leader wants to be seen as doing nothing.

There are some important questions -- that can perhaps be translated into lessons -- emerging from the most recent tragedy with eight nursing home residents perishing from heat related complications in Broward County Florida after Hurricane Irma.  

1. Should States Mandate Specific Equipment?  For example, Governor Scott is seeking a rule that mandates "ample resources" including a "generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for a least 96-hours following a power outage."   It should be clear, certainly after Katrina (2005), Harvey (2017) and Irma (2017), that some of the biggest dangers of extreme weather events ares not just the wind or rain or fire or other immediate impact, but the consequences of loss of power or other critical resources.  

2. Can Inspectors Better Assure Compliance with Safeguards?  Governor Scott's demands focus not just on the care facilities' obligations, but on the role of state and local officials to have a system of checks and balances to increase the likelihood the safeguards are actually in place and operable, and not "just" a written plan for the future.

3.  What Safeguards Were Effective At Similarly Situated Facilities?  News articles report some push back from providers to Scott's measures, who seem to be arguing feasibility and cost. But, certainly there were providers, faced with the same challenges as the Broward County nursing home, who were successful in protecting their residents.  Perhaps the more important lesson to learn -- and learn quickly -- is what was affordable and effective?  

Also, I think that there are some questions that can be raised about whether and how family members and the larger community might be able to help as part of a plan for disaster preparedness.  Certainly not all, and perhaps not even most, families will be able to help in providing post-disaster assistance including temporary shelter.  But, I think at a minimum, families would want to know what steps they might take to be part of the safety plan and post-event response. 

 

Doctors in Older Age: Should They Be Evaluated on Their Fitness?

I've heard a few times about concerns regarding doctors in their 70s and 80s who continue to practice medicine. The implication is that their age might somehow make them less fit to practice medicine. I've also heard the same concerns expressed about attorneys. Do we concern ourselves with professional fitness just based on age for any other profession? Not for us law profs.  So I was interested in reading this article from the Philadelphia Inquirer, More doctors are practicing past age 70. Is that safe for patients? 

The article opens with the story of one pediatrician who at 76, was required by his hospital to be evaluated. This hospital "is among the growing number of hospitals that are reevaluating doctors simply because they are old. Their age puts them at higher risk for physical and cognitive changes that could imperil patients." Other doctors quoted in the article oppose such actions, arguing the lack of "scientific evidence correlating such test results with physician performance. They have, however, grudgingly accepted physical testing and peer review."  The article notes a trend of sorts on this issue

In 2015, the American Medical Association called for guidelines to evaluate aging doctors, although it did not specify what they should be.  It also said doctors have a “professional duty” to self-assess.  The American College of Surgeons last year said surgeons should voluntarily undergo testing by their personal physicians and  disclose any problems to their employers.

There are likely more older physicians still practicing then you might think. To some extent, the article notes, that taking action now internally is preemptive.   There's a two-day challenging testing program, "[t]he  Aging Surgeon Program, which is available to doctors from anywhere,  involves extensive cognitive and physical testing as well as evaluation of balance, reaction time, and fine motor skills."  Penn Medicine has implemented cognitive testing for all of their doctors who are 70 or older. The article looks at what other medical facilities in the area are doing. 

I suspect this is an issue we will hear more about in the future.

Fla Supreme Ct Permits "Ratification" of a Ward's "Invalid" Marriage

In a case with sad facts, the lower court in Smith v. Smith certified a question to the Florida Supreme court as follows:

"Where the fundamental right of marry has not been removed from a ward [under state guardianship law], does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?"

During the guardianship proceeding at issue, apparently the original court had not specifically addressed the right to marry.  In light of that fact, in its ruling on August 31, 2017,  the Florida Supreme Court answered a slightly different issue, because it viewed the "right to marry" as being tied to the "right to contract," which had been expressly removed from the ward.

The Florida Supreme Court ruled that "where the right to contract has been removed [under Florida guardianship law], the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect."  

Counsel representing the wife of the incapacitated "husband," argued that, in effect, such ratification had already happened, during a proceeding where the guardianship judge had made comments treating the marriage as "fact."  The Supreme Court disagreed:

Although the invalid marriage between Glenda and Alan is capable of ratification under [Florida law], it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order ratifying the marriage or conducting a hearing to verify that the ward understands the marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court's statements here were not sufficient to approve the marriage. However, the parties are not foreclosed from seeking court approval based on our decision today.

The ward in the Smith case was not alleged to be older or elderly; rather, the determination of his lack of legal capacity followed a head injury in a car accident. Recognizing the larger implications about validity of a marriage occurring during a guardianship, however, the Real Property Probate Section and the Elder Law Section of the Florida Bar and the Florida chapter of the National Association of Elder Law Attorneys submitted amicus briefs, arguing generally in favor of a ward's right to marry and urging the Supreme Court to approve post-marriage ratification by the guardianship court. 

Is Hospice Care Misunderstood?

Hear the word hospice and what do you think? The patient is close to dying, right? Kaiser Health News did a story about hospice care that explains the patient doesn't have to be on the edge of dying. Shedding New Light On Hospice Care: No Need To Wait For The ‘Brink Of Death’ examines the misconception about hospice care.

Although hospices now serve more than 1.4 million people a year, this specialized type of care, meant for people with six months or less to live, continues to evoke resistance, fear and misunderstanding... “The biggest misperception about hospice is that it’s ‘brink-of-death care,’” said Patricia Mehnert, a longtime hospice nurse and interim chief executive officer of TRU Community Care, the first hospice in Colorado.

People who have some time left may find that using hospice gives them a better quality of life.  "New research confirms that hospice patients report better pain control, more satisfaction with their care and fewer deaths in the hospital or intensive care units than other people with similarly short life expectancies." (The article referenced in the quote requires purchase or subscription).  The KHN article explains the differences in the four levels of care offered by hospice, including respite care, routine care, general inpatient care and continuous care. Routine care is the most typical, with visits by aides and an RN, the frequency of which is dictated by the patient's condition.  One of the biggest misconceptions, according to the article, the family thinks hospice folks will be in the home with the patient continuously.  As a result, the family or patient may need to hire aides or companions to get the needed help.  The article discusses provision of medications, choice of doctors,  medication concerns, discharge and care of the patient in the last few days of life.