Elder Law Prof Blog

What is the Difference Between Original Medicare and Part C?

We are in the thick of Medicare enrollment, so the story from Kaiser Health News explaining the differences between original Medicare and Medicare Advantage is quite timely. Medicare Vs. Medicare Advantage: How To Choose  reports that the Part C offerings are pretty stable for 2018 and in fact there are available the highest number plans for purchase all over the US.   The article explains some of the foundational concepts for Part C plans:

Basics:

Medicare Advantage plans must provide the same benefits offered through traditional Medicare (services from hospitals, physicians, home health care agencies, laboratories, medical equipment companies and rehabilitation facilities, among others). Nearly 90 percent of plans also supply drug coverage.

Pros from CMS:

Little paperwork. (Plan members don’t have to submit claims, in most cases.)... An emphasis on preventive care...Extra benefits, such as vision care, dental care and hearing exams, that aren’t offered under traditional Medicare....An all-in-one approach to coverage. (Notably, members typically don’t have to purchase supplemental Medigap coverage or a standalone drug plan.)....Cost controls, including a cap on out-of-pocket costs for physician and hospital services (Medicare Part A and B benefits).

Cons from CMS:

Access is limited to hospitals and doctors within plan networks. (Traditional Medicare allows seniors to go to whichever doctor or hospital they want. ...Techniques to manage medical care that can erect barriers to accessing care (for example, getting prior approval from a primary care doctor before seeing a specialist).... Financial incentives to limit services. (Medicare Advantage plans receive a set per-member-per-month fee from the government and risk losing money if medical expenses exceed payments.) ... Limits on care members can get when traveling. (Generally, only emergency care and urgent care is covered.) ... The potential for higher costs for specific services in some circumstances. (Some plans charge more than traditional Medicare for a short hospital stay, home health care or medical equipment such as oxygen, for instance.) ... Lack of flexibility. Once someone enrolls in Medicare Advantage, they’re locked in for the year. There are two exceptions: a special disenrollment period from Jan. 1 to Feb. 14 (anyone who leaves during this time must go back to traditional Medicare) and a chance to make changes during open enrollment (shifting to a different plan or going back to traditional Medicare are options at this point).

The article also discusses the implications for Medigap policies if the beneficiary switches enrollment to original Medicare and the premium costs for Part C plans. The article recommends a close look at the drug costs under the plan. The article concludes with a discussion of selecting doctors that participate in the beneficiary's plan. 

Helpful article!  Assign it to your students.

 

What Happens When the Diagnosis of "Alzheimer's" Isn't the Correct Diagnosis?

On Monday I did a presentation in New Orleans for a conference sponsored by a professional liability insurance organization. My topic was "legal implications of a diagnosis of dementia" as a risk management concern and part of my task was to talk about alternative diagnoses of neurocognitive disorders, especially for clients. 

In part, my message was a note of caution.  Lack of "short term memory" may not be present, and thus attorneys, families and colleagues may not have this early warning sign of cognitive disease.  For example, a frontal lobe disorder can be "early" onset (usually meaning onset before the individual reaches the age of 60).  Language or short term memory problems may not be noticeably impaired, while higher executive functions, especially judgment, can be seriously impacted.  Changes in personality, loss of inhibition (including sexual inhibition), recklessness with money or investments may be signs, but these changes may be mistaken for "a mid-career crisis," or other personality problems unrelated to disease.   

The lawyer who invited me to do this program with him, Mark Tuft from California, has long experience and knowledge of ethical and disciplinary standards for attorneys.  On a related point, he pointed me to a recent Washington Post article, where an individual had been living for two decades with a "fatal" diagnosis of early onset "Alzheimer's Disease," which, as it turns out, may not have been accurate.  The author writes in his essay:  

Two neurologists have stated [recently] that I fall into a fairly new category called suspected non-Alzheimer’s pathophysiology, or SNAP. According to one study, about 23 percent of clinically normal people ages 65 and older and about 25 percent of people with MCI[Mild Cognitive Impairment] have SNAP. For people with both MCI and SNAP, the risk of cognitive decline and dementia is higher than for clinically normal people with SNAP.

 

I was initially diagnosed with MCI. But for the past 10 years, the diagnosis has been Alzheimer’s. It is still officially the diagnosis because information gained in trials — which is how I found out that my amyloid scan was negative and that I probably did not have Alzheimer’s — does not go on a medical record. . . . 

 

I will have to wait for science to catch up before I know for sure. Who knows, I may even be part of the next new term. I just hope it means that what I have will not be progressive and lead to death. The one thing we all should learn from my experience is to take advantage of all the tools we have access to so we can make the best decision possible.

What is next for this individual? He received the latest news with mixture of relief and confusion. Read "I lived with an Alzheimer’s diagnosis for years. But a recent test says I may not have it after all," by Michael Ellenbogen. 

Thanks, Mark, for sharing your podium in New Orleans with me on Monday and for pointing all of us to this article, which is another reminder of the rapidly changing world of scientific knowledge about cognitive impairments. 

Continuum of Housing for Adults with Special Needs

There is a lot of conversation about aging in place and how to accomplish that goal.  Design and modifications may depend on the individual's needs. We think about the concept mainly with elders but what about younger people with special needs who may also desire to stay in one place and grow old there? If you search for resources about aging in place, much of what you find will be specific for elders, but many of the recommendations may be adapted to those who need accommodations to live independently. At Stetson's 19th Annual Special Needs Planning & Special Needs Trusts conference, I visited an exhibitor that provides a great housing option for individuals with special needs that's designed for exactly that. Similar to a CCRC, the concept is a continuum of housing that allows the individual to age in place. Annandale Village, located in Suwanee, GA., provides 4 levels of housing: independent living either on campus or in the community, assisted living and nursing home care for individuals with developmental disabilities or brain injuries.  It offers a variety of programs, both for residents and a day program.  One cool class teaches folks on managing independent activities of daily living.   They also offer respite services. I know they aren't the only organization providing these levels of housing, but I thought it is a really interesting to learn more about the concept., especially supporting the individual's residential needs through his/her life.

Full disclosure-I'm the conference chair for this Stetson conference.

The Continuing Need for Objective Advice About Continuing Care and Life Plan Communities

Over the Halloween weekend, I arrived in New Orleans for overlapping annual meetings involving law and aging issues. Whoa! The Big Easy can be a crazy place at this time of the year! Once I recovered from mistaking the annual "Voodoo Festival" at one end of the convention center for the meetings sponsored by LeadingAge and the National Continuing Care Residents Association (NaCCRA) at the other end, I was safely back among friends.  (I suspect a better comedienne than I am could come up with a good "undead" joke here!)

Settling down to work, I participated in half-day NaCCRA brainstorming sessions on Saturday and Sunday.  Members of the NaCCRA board and other community representatives worked to identify potential barriers to growth of this segment of senior housing.  Why is it that there is still so little public understanding of communities that are purpose-designed to meet a wide range of interests, housing and care needs for seniors who are thinking about how best to maximize their lives and their financial investments over the next 10, 15, 20 or more years?

During the Sunday session led by Brad Breeding of MyLifeSite.net, we heard how Brad's experience as a financial planning advisor for his older clients (who were eager for advice on how to evaluate contracts and financial factors when considering communities in North Carolina), led him and a business partner to develop a more nationwide internet platform for comparative information and evaluations.

I first wrote about Brad's concept on this Blog in 2013 when his My LifeSite company was just getting started, and it is exciting to see how far it has come in less than 5 years.  They now offer a searchable data base on over 1,000 continuing care and life plan communities.  Best of all, they have managed to stay remarkably independent and objective in the information they offer, and have both consumer and providers as customers for their information.  They haven't gone down the slippery slope of reselling potential resident information to providers as "leads."  

One audience member, a CCRC resident, who is frustrated about a lack of lawyers in her area with knowledge about the laws governing CCRCs, asked "is there a way to get more 'elder law' attorneys to understand regulations and contracts governing this part of the market so as to be informed advisors for prospective residents seeking objective advice?"

I believe the answer is "yes," particularly if current clients in CCRC-dense areas reach out  to Elder Law Sections of Bar Associations in their states, suggest hot topics, and offer to work together on Continuing Legal Ed programs to develop that expertise.  I know that almost every year at the annual summer 2-day-long Elder Law Institute in Pennsylvania offers breakout sections for lawyers on the latest laws, cases, and regulations affecting individuals in CCRC settings. Indeed, for "future" attorneys I often use CCRC contracts and related issues as teaching tools in my 1L basic Contracts course. 

Living Alone, Frail and Needing to Evacuate

You know I've blogged several times about the recent hurricanes (and I have more yet to come). This one is about the fires from the West.  Although sheltering in place may be an option in a hurricane, you certainly can't shelter in place when your shelter is in the direct path of the fire.  Kaiser Health News recently ran an article highlighting the dilemmas and dangers in such cases. Fires Prey On Frail Residents Living On Their Own focuses on two stories of individuals who didn't get out in time. In one, the caregiver of a couple, both elderly and frail, was unable to get them out in time. In another, the younger person with special needs was found in her home after the fire passed.  The story highlights the need and obstacles in responding to fast-moving disasters like wildfires.  Many families have turned to social media in an effort to locate relatives in the path of fires.

One expert who heads up a  California Council on Aging suggested that residents keep their landlines, that service providers keep hard copies of client addresses and families exchange the contact info with neighbors of the elders.  Some areas are training individuals with developmental disabilities on how to respond to an emergency.  Everyone needs to be prepared for disasters. Some more vulnerable populations might need to be better prepared then most.

Let's hope we get a break from all of these natural disasters soon.  Stay safe.

 

 

A Historical Look at Guardians for Minors and "Persons of Unsound Mind"

My research turned me to an interesting resource available in the public domain, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind.  The book was published in 1897.

Particularly in light of current issues about court oversight of guardians and conservators, it is interesting to see that even in the nineteenth century, states were struggling to decide how frequently fiduciaries should be required to make written reports of financial accounting.  Reporting only at the "end" of the appointment or at intervals of 5 years was sometimes permitted by statutes.  The treatise suggests that while annual accounts facilitate better money management by the guardian, frequent reports also served to "shift the burden to the ward, or other person assailing the account" to make a timely challenge to the report, or it will be presumed "correct." This comment seems to demonstrates the court 's reluctance to expected to be initiate oversight "unless" there was a complaint.  

Public Interest Lawyers - Part-Time Staff Position Open with Justice in Aging

Justice in Aging, which is one of my favorite advocacy groups, is recruiting to fill another spot at the National Center on Law & Elder Rights (NCLER). Here are some of the details:  

Washington DC, Oakland, or Los Angeles Office

Justice in Aging seeks a part-time attorney with a strong commitment to and experience providing legal services for older adults to join our organization. The successful candidate will strengthen legal services delivery to older Americans as part of the National Center on Law and Elder Rights (NCLER), which Justice in Aging administers under a contract with the Administration for Community Living. The attorney will work closely with the Project Manager, Directing Attorney and the entire NCLER team to provide technical assistance, training, and resource support to legal assistance developers, legal services attorneys, and the aging and disability network. The location for this position is Washington, D.C., Los Angeles, or Oakland, CA. Exceptional candidates in other locations will also be considered.

For more information, see the continued job description here.  Review of applications will begin on November 15, 2017.  

Oregon-Just Click for POLST

Kaiser Health News ran a story last week regarding electronic storage of POLST forms. In Oregon, End-of-Life Wishes Are Just A Click Away highlights a project at Oregon Health & Science University to make POLST forms available electronically. OSHU, working with a tech company, "allow[s] health care providers to electronically find any of the 172,000 active forms in Oregon’s POLST registry with a single click, no matter where they were filed." In 5 months, OSHU doctors have accessed the forms 14,000, according to the story.

We all know the problems that may occur when health care providers don't have ready access to  a patient's advance directive documents.  This project is designed to alleviate the issue of access to POLST forms, regardless of whether the forms were signed at OSHU or elsewhere.  New York has something similar that is web-based allowing patients to complete and access forms throughout New York.  End of life wishes of patients in Oregon are more likely followed than any other state in the US according to the article. Making completed POLST forms easily accessible by providers is one step in making that outcome more possible.

Research suggests that POLST forms guide end-of-life care, whether patients die at home or in a health care facility. A 2014 study of deaths among Oregon POLST users found that 6.4 percent of patients who specified comfort-only measures died in a hospital, compared with 44.2 percent of those who chose full treatment — and 34.2 of people with no POLST form on file.

A recent analysis found that seriously ill patients in Oregon are more likely to have their end-of-life wishes honored than those in nearby Washington state — or the rest of the U.S.

NM Commission Submits Initial Recommendations for Improving State's Guardianship System

The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.  

As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.

The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including: 

• Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
• Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
• Establish stringent reporting and financial accountability measures for conservators, including the following:
      1. require conservators, upon appointment, to sign releases permitting the courts
      to obtain financial documents of protected persons;
      2. require annual reports to include bank and financial statements and any other
      documentation requested by the court auditor, with appropriate protections
      to prevent disclosure of confidential information;
      3. require conservators to maintain a separate trust account for each protected
      person to avoid commingling of funds; and
      4. require conservators to maintain financial records for seven years.

The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."

Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.

The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study.  The deadline for the comments is November 8, 2017.

My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R.  Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!  

The Stuff We Leave Behind

Have you thought about all the stuff you have accumulated that you will leave behind at your death? You may  make specific devises or maybe you will just leave your estate in bulk to beneficiaries to divide up between themselves. Your collection of flamingo salt and pepper shakers may be precious to you but not to your beneficiaries.  The Washington Post wrote about this situation in a story titled Americans are pack rats. Swedes have the solution: ‘Death cleaning.’ The article starts off, "[i]f your family doesn’t want your stuff when you’re alive, they sure won’t want it when you’re dead....That’s the blunt assessment of yet another self-help author from abroad who is trying to get Americans, who have an addiction to collecting and storage units, to clean up their acts."  The book will be available in the US starting in January of 2018.

The advantage of winnowing down your stuff while alive is it takes a lot of burden off your heirs. 

The concept of decluttering before you die, a process called “dostadning,” is part of Swedish culture. (It comes from the Swedish words for death and cleaning.) Karin Olofsdotter, 51, the Swedish ambassador to the United States, says  ....  “It’s almost like a biological thing to do.” Olofsdotter says part of Swedish culture is living independently and never being a burden to anyone. How you keep your home is a statement of that.

Although this cleaning out can occur at any age, the author suggests 65. She also offers some suggestions such as:

Don’t start with your photos, as you’ll get bogged down in your memories and never accomplish anything. Make sure you keep a book of passwords for your heirs. Give away nice things you don’t want as gifts, such as china or table linens or books, as opposed to buying new items. Keep a separate box of things that matter only to you, and label it to be tossed upon your death. It’s okay to keep a beloved stuffed animal or two. 

More on Guardianships

The ABA Journal ran an article as part of their daily news about some of the cases regarding guardians and questionable acts. Cases raise questions about adult guardianship and lawyer-hospital relationships  focuses on cases in Michigan and South Carolina.  "Cases in Michigan and South Carolina are raising questions about lawyers who receive guardianship appointments as a result of their relationships with hospitals." The story explains that in the Michigan case, the judge noted an agreement between the attorney and the hospital regarding filing petitions concerning certain patients as well as compensation from a third party (hospital).  The South Carolina case involved supposed conflicts of interest, according to the story, when a hospital attorney served as guardian. In addition to discussing the two cases in more depth, the article goes on to discuss the New Yorker article about guardianships in Nevada (see earlier blog posts) and reform activities there.

Cremains -- Lost in Transportation

While I was supervising my law school's Elder Protection Clinic, we had several matters arising out of disputes over the bodies of loved ones.  Suffice it to say that each matter was "unique."  I even had an on-call expert, an attorney who decided to have a sub-specialty in the law of burying (or not burying) a body.  

The Washington Post offers an interesting story about cremains -- the ashes from cremation of an elderly woman in North Dakota  -- that went missing in the journey to the survivor.  The son's efforts to get answers, apologies, or "more," are documented well in Amy Wong''s piece "His Mother's Ashes Were Lost in the Mail. In his Search, He's Found only Frustration -- and Fury."    

New Medicare Observation Status Toolkit from Center for Medicare Advocacy!

We have blogged several times about the issues for Medicare beneficiaries who are not admitted to the hospital but instead are on observation status. The Center for Medicare Advocacy (CMA) has released a toolkit for those Medicare beneficiaries.  Here's some information from CMA about their toolkit along with helpful links.

The information in our Toolkit can help beneficiaries, families, advocates and providers understand and respond to an “outpatient” Observation Status designation.  The Toolkit contains our Observation Status Infographic; Frequently Asked Questions; A Fact Sheet, Summary & Stories from our partners in the Observation Coalition; A Sample Notice (the MOON); our Recorded Webinar (slides in the printable .pdf); Beneficiary/Advocate Q&A; and our Self-Help Packet.

The Toolkit can be downloaded in its entirety or browsed online at http://www.medicareadvocacy.org/medicare-hospital-outpatient-observation-status-toolkit.

There's a great infographic explaining the observation status dilemma. You could post it or hand it out to clients. Get permission from CMA to post it on your website in the client info section! Check out the FAQ as well as the self-help packet. In addition to accessing the toolkit online, you can download the toolkit as a pdf, by clicking here.

Full disclosure-I'm a member of the CMA board.

Radio Diaries: Oral Histories from a "Retirement Home"

One of my colleagues shared with me recently a 30-minute podcast from Radio Diaries, on "The Last Place."  The focus is on residents at Presbyterian Homes in Evanston, Illinois, which is sometimes described in the segment as a "nursing home." However, it seems to me to be a continuing care community (CCRC) offering a wide range of residential options, from independent living to skilled care.

The voices on this segment are far more upbeat than the title -- "The Last Place" --  would imply!  Good fuel for a family or a classroom discussion.  For me, it is a reminder that when someone says "I never want to live in that place," what they usually mean is they never want to be disabled nor in need of care.  I think that distinction can be important for families who struggle to live up to a pledge "never" to place their loved ones in care.  It's not the place, it's the disability that is the biggest issue.  I continue to encounter reminders that the "right" place (for the person's situation, including any disability) is the best place.    

Thank you, Mathew Lawrence, for sharing this link!

The Latest in Off-Label Prescriptions for Dementia Patients: "The Little Red Pill"

My thanks to my colleague Dermot Groome for pointing me to the CNN investigative series on "The Little Red Pill Being Pushed on the Elderly." The prescription drug in questions is Nuedexta, approved to treat PseudoBulbar Affect or PBA, a "disorder marked by sudden and uncontrollable laughing or crying." (Perhaps you have seen commercials for treatment of PBA with actor Danny Glover effectively portraying the disorder).   

According to the CNN report:

Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. Total sales of Nuedexta reached almost $300 million that year.

 

Concerns about unnecessary prescription, side effects (including a higher incidence of falls), and federal reimbursements for cost are raised by critics:

 

Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less. And state regulators have found doctors inappropriately diagnosing nursing home residents with PBA to justify using Nuedexta to treat patients whose confusion, agitation and unruly behavior make them difficult to manage.

 

 

"There has to be a diagnosis for every drug prescribed, and that diagnosis has to be real ... it cannot be simply made up by a doctor," said Kathryn Locatell, a geriatric physician who helps the California Department of Justice investigate cases of elder abuse in nursing homes. "There is little to no medical literature to support the drug's use in nursing home residents (with dementia) -- the population apparently being targeted."

The article notes that Medicare pays for much of the use of this drug in the nursing home setting, and as we've been reported before on other off label prescriptions of  medications, federal regulators have the power to investigate and sanction improper use (not just off-label use) under the False Claims Act and similar anti-fraud regulations.  

Southeastern Association of Law Schools Annual Conference Proposals

The Southeastern Association of Law Schools (SEALS) has opened their call for proposals for their 2018 annual conference.  If you teach T&E, Elder Law or related courses and are interested, here is some info about proposals for those tracks written by one of the organizers, Deborah Gordon:

We are hoping to encourage more trusts and estates programming at the Southeastern Association of Law Schools conference, which will be held from August 6-12 in Ft. Lauderdale.  We will be proposing two discussion groups, described below, one which focuses on pedagogy and one on scholarship; please let us know if you would like to participate.

In addition, please feel free to propose a panel or discussion group yourself; here is the submission information, http://www.sealslawschools.org/submissions/.

Thank you!  If you have any questions and would like to participate, then please contact Naomi Cahn, [email protected]/, and Deborah Gordon, [email protected].

PROPOSED DISCUSSION GROUPS Both pedagogy and scholarship within trusts and estates are moving beyond traditional core topics.  We are proposing two plenary discussion groups that explore how pedagogy and scholarship are expanding the ways of teaching and studying trusts and estates and related doctrines. One group will address innovations in teaching, including both skills and doctrine, and teaching about topics that overlap with other areas of the  law, such as Elder Law, Family Law, Property, and Professional Responsibility; the second group will explore new scholarship.

Medicare Advantage 5-Star Ratings Report

CMS recently released a report of the ratings of Medicare Advantage plans, according to an article in Modern Healthcare. Medicare Advantage star ratings show insurers' performance hasn't improved explains that according to the data recently released by CMS:

the number of Medicare Advantage plans that performed well in the CMS' star ratings program dropped slightly from last year. At the same time, the amount of insurers that receive certain ratings hasn't changed significantly in recent years. The CMS said about 44% of the 384 active Medicare Advantage contracts in 2018 that also have Part D prescription drug coverage earned 4 stars or higher for their overall rating. This is a drop from 2017 when about 49% of the 363 active Medicare Advantage plans earned 4 stars or higher. Although the overall number of 4-star or high plans dropped slightly, more beneficiaries will be covered by the highest performing Medicare Advantage plans in 2018, the CMS said. Nearly 73% of Medicare Advantage enrollees are in contracts with 4 or more stars, compared to about 69% of enrollees in such plans last year. 

The story notes that the rankings tend to be pretty static and that those with 5 stars in the past seem to maintain that ranking. "Another consistent trend is that higher performers tend to be companies that have the most experience in Medicare Advantage. Contracts with more than 10 years in a Medicare Advantage program accounted for about 21% of 4.5-star ratings and 31% of 4-star and 3.5-star ratings." The article discusses the factors that go into the 5 star rating system and offers some added information about the performance of Part D plans. The CMS press release is available here.

Health Affairs Blog: Hospice Doc Leads Us on a Journey through the Valley of the Shadow of Death

I recommend a fascinating piece on the Health Affairs Blog by Joanne Lynn, who among her many callings is a "hospice and long-term care physician. " You don't see that as a specialization very often!

The title is Traveling The Valley of Shadow of Death in 2017.  Drawing upon both her work and personal experiences, Dr. Lynn points out:

• "First, the life possibilities of an elderly person with increasing disabilities is profoundly depending upon the surrounding community...." 
• "Second, the preferences and priorities of elders in this phase of life vary much more than in earlier phases...."
• "Third, we need more reliable and reasonable financing plans. Working-age people still don’t realize that they need to provide for themselves in old age. Policies need to change to make vehicles for saving affordable and reliable...."
• "Fourth, sick and disabled elders living in the community need continuity and reliability across time, instead of the cut-up care system we provide...."

She seems to advocate a unique form of deregulation, concluding:    

We need an era of innovation and testing, shaped by the facts of the situation. We need a new set of policies for our new way of living at the end of our lives. Let’s try substantial innovations, mostly by relieving communities of the burdens of past policies and regulations, and let’s learn quickly so we can count on living comfortably and meaningfully in the last years of our lives.

I recommend the whole essay.  

Fountains of Youth (Or Just Spending?): A Positive Take on "Anti-Aging" Industries

Every day I fight with my email in-box, trying to delete the stuff that just isn't necessary to open, much less read.  For example, I know more or less which emails -- no matter how tempting the regarding line -- are what I call "junk science" emails that claw their way past my spam filter.  A lot of them involve "anti-aging" theories that promote foods, exercises, vitamins or minerals that "May" prevent cognitive or physical decline.  "May" with a capital "M."  

But United States District Judge Roslyn Silver, from Arizona, recently shared an article she's using with a class she is teaching at Arizona State's law school. In the June 2017 issue of Smithsonian Magazine, the subtitle for the article explains: "Backed by digital fortunes of Silicon Valley, biotech companies are brazenly setting out to 'cure' aging."  The author profiles the work of controversial author Aubrey de Grey and "Chief Science Officer" from SENS, a biotech research enterprise in California.  The author summarizes:  

The basic vision behind SENS is that aging isn’t an inevitable process by which your body just happens to wear out over time. Rather, it’s the result of specific biological mechanisms that damage molecules or cells. Some elements of this idea date back to 1972, when the biogerontologist Denham Harman noted that free radicals (atoms or molecules with a single unpaired electron) cause chemical reactions, and that these reactions can damage the mitochondria, the powerhouses within cells. Since then, studies have linked free radicals to all sorts of age-related ailments, from heart disease to Alzheimer’s.

 

De Grey takes this concept further than most scientists are willing to go. His 1999 book argued that there could be a way to obviate mitochondrial damage, slowing the process of aging itself. Now SENS is working to prove this. Its scientists are also studying other potential aging culprits, such as the cross-links that form between proteins and cause problems like arteriosclerosis. They’re looking at damage to chromosomal DNA, and at “junk” materials that accumulate inside and outside cells (such as the plaques found in the brains of Alzheimer’s patients).

Despite the controversies associated with the work of de Grey and other anti-aging proponents, the article points to a "mini-boom of private investment in Silicon Valley, where a handful of labs have sprung up in SENS' shadow, funded most notably by tech magnates."

One of the early critics of de Gray concedes that anti-aging theorists have attracted needed money and energy into age-related research beyond "just" the 1,000-year-old human goal:

More than a decade later, [University of Massachusetts Medical School Professor] Tissenbaum now sees SENS in a more positive light. “Kudos to Aubrey,” she says diplomatically. “The more people talking about aging research, the better. I give him a lot of credit for bringing attention and money to the field. When we wrote that paper, it was just him and his ideas, no research, nothing. But now they are doing a lot of basic, fundamental research, like any other lab.”

I can definitely see how this article would be useful in a law school class on aging, elder law, or estate planning.  It raises fundamental questions in governance, economics and human rights, including implications from disparities in life expectancy that already exist and are increasing,  associated with comparative wealth.  

For the full article, see Can Human Mortality Really be Hacked? by Elmo Keep.

Voluntary Stopping Eating & Drinking (VSED) When Capacity Lacking?

You may have read recently about a woman who had an advance directive that addressed artificial nutrition and hydration. The SNF where she lived was hand feeding her, over her husband's objections. The trial court sided with the SNF and the state ombudsman who had argued that "state rules to prevent abuse required the center to offer residents three meals each day and provide help eating, if needed."  Can one provide in her advance directive that she refuses in advance oral fluids and foods at some point in the future? The Kaiser Health News article, Dementia Patient At Center of Spoon-Feeding Controversy Dies, explores the specific case as well as the issue.  The patient, as the title explained, died last week. 

Here's the issue illustrated in this matter.

At issue is whether patients with Alzheimer’s and other progressive diseases can stipulate in advance that they want oral food and liquid stopped at a certain point, hastening death through dehydration. It’s a controversial form of what’s known as VSED — voluntarily stopping eating and drinking — a small but growing practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, usually resulting in death within two weeks.  .... “The right to VSED is reasonably well-established, but it’s when a person isn’t competent that’s the issue,” said Paul T. Menzel, a retired bioethicist at Pacific Lutheran University in Tacoma, Wash., who has written extensively on the topic.

So in thinking about a person saying no to food and fluids, "VSED doesn’t require a law or a doctor’s approval. But the question of whether it’s possible for people who can no longer actively consent to the procedure remains ethically and legally unclear. That’s especially true for patients who open their mouths to accept food and fluids...." 

Have you looked at your state's laws to see if there is a position on this?  According to the article, almost 24 states have laws on "assisted feeding" some of which "specifically prohibit withdrawing oral food and fluids. Other states address only artificial feeding or are unclear or silent on the issue [and] ... Idaho — appears to sanction withdrawal of assisted feeding by a health care proxy" according to an expert quoted in the article. However, "Idaho state law also prohibits any form of assisted suicide and requires “comfort care” for patients if artificial nutrition and hydration is withdrawn. It’s not clear whether a request to halt assisted feeding would be honored" said an expert on Idaho's statute on Medical Consent and Natural Death Act.