Elder Law Prof Blog

Elders & Driving

Elder drivers is a topic I cover in my class every spring, and it's one guaranteed to generate a robust discussion. So a recent story about Prince Phillip allows me to bring in current events to this topic. The Washington Post ran this article, Britain’s Prince Philip, 97, crashed his car. Rescuers say it’s ‘amazing people weren’t seriously injured.’.

Of course, age alone is not an indicator of good or bad driving, but stories like this one allow the students to think about the various issues and how we may as a society address them. Geographic location and financial stability also play into the options available for those who shouldn't (or can't) drive.  In our area, public transportation isn't as plentiful as other urban areas.  The students, of course, would open up a ride-sharing app on their smart phones and order a car.  Elders may not be able to afford to do so, or even know it exists. There are a number of issues that can then arise for those who lose the ability to get places. And of course, we all have an interest in getting unsafe drivers off the road.

I am guessing that Prince Phillip likely has many more transportation options that an average 97 year old in the U.S.   Families frequently need to have "the chat" with their elder relative about stopping driving. The Washington Post article addressed that. "So, who might ask Philip to hand over his car keys? 'It will be the Queen, she’ll be the only one who can really tell him...'”

A Blood Test for Alzheimer's?

CNN ran a story last week about a blood test that detects Alzheimer's. Blood test could detect Alzheimer's up to 16 years before symptoms begin, study says starts with an explanation of the "technical" aspects where the test would "measur[e] changes in the levels of a protein in the blood, called neurofilament light chain (NfL) [which] researchers believe [with] any rise in levels of the protein could be an early sign of the disease..."  The study is in the most recent issue of  Nature Medicine.

This is not a cure, but there are advantages to knowing this far in advance that the person has Alzheimer's.  For starters, as the story notes, it would help with testing of treatments. From a legal point of view, it may encourage more clients to plan. 

Thanks to Professor Naomi Cahn for sending me the link to the story.

 

Housework-It May Be Good for Your Brain!

Hate housework? Well here's a new reason to look forward to it. According to a story on NPR, Daily Movement--Even Household Chores--May Boost Brain Health in Elderly  a recent "study finds even simple housework like cooking or cleaning may make a difference in brain health in our 70s and 80s."

The study looked at 454 older adults who were 70 or older when the research began. Of those adults, 191 had behavioral signs of dementia and 263 did not. All were given thinking and memory tests every year for 20 years.

In the last years of research before death, each participant wore an activity monitor called an accelerometer, similar to a Fitbit, which measured physical activity around the clock — everything from small movements such as walking around the house to more vigorous movements like exercise routines. Researchers collected and evaluated 10 days of movement data for each participant and calculated an average daily activity score.

...

The findings show that higher levels of daily movement were linked to better thinking and memory skills, as measured by the yearly cognitive tests.

The article discusses limitations on the study and the need for more research. In the interim, get out a dust cloth and the broom and start cleaning!

 

Student Loan Debt Webinar

Mark your calendars for this upcoming webinar on student loan debts and elders, scheduled for January 29 at 2 est.  Here's a description of this free webinar:

A growing number of older adults are carrying more student loan debt than ever before. Many took loans for their own studies while some also borrowed or cosigned loans for a child or another person. Student loan repayment—or debt collection consequences following non-payment—can impede saving for retirement or making ends meet on a fixed income. Unfortunately, even Social Security benefits can be taken to repay defaulted student loans.  

This webcast will present the basics of student loan law and a framework for issue-spotting and solving common student loan problems. Topics covered during the webcast will include: identifying a loan type/status, making loan payments affordable, evaluating loan cancellation options, stopping involuntary debt collection activity, and curing default. 

To register, click here

 

 

Student Fellowship Opportunity

My dear friend and executive director of the ABA Commission on Law and Aging sent me a notice about a part-time employment opportunity for two students. The Coalition to Transform Advanced Care (C-TAC) ("an alliance of 140 organizations whose sole purpose is to ensure that all Americans with advanced illness, especially the sickest and most vulnerable, receive comprehensive, high-quality, person- and family-centered care that is consistent with their goals and values and honors their dignity") has announced two student fellowship opportunities for a project, "two part-time, temporary positions as C-TAC Changemaker Fellows.  Fellows will primarily undertake research for programs that align with their interests (policy, family caregiving, health disparities, data/metrics) and will be assigned a C-TAC mentor.  Supporting program staff will also be an important opportunity for the Fellows to learn and support projects." Students need to be at least seeking a bachelor's or master's degree and have relevant interests in advocacy, public policy and the political realm.  More information-contact Allan Malievsky ([email protected]) with “C-TAC Changemaker” in the subject line.

 

Identity Theft Webinar

Regardless of whether you are one of the lucky ones who have not been a victim of ID theft, or are part of the unlucky group who have been victims of ID theft, you will want to attend this webinar. The Center for Victim Research is offering a webinar on January 17, 2019  at 2 p.m.  on Identity Theft and Fraud: What Do We Know from Research and Practice? The webinar will cover

the current evidence on the challenges faced by victims of identity theft and fraud.

The experiences of victims of identity theft and fraud are under-researched, while the responses to their needs remain underdeveloped and have typically not yet been evaluated. CVR researchers Dr. Yasemin Irvin-Erickson and Ms. Alexandra Ricks will present key findings from the first comprehensive review of national research and practice evidence on this topic.

Topics covered will include:

• The prevalence of identity theft and fraud
• Harms and consequences experienced by victims
• Services available and where the field needs to grow

To register for the webinar, click here.

More on Merit-Based ALJ Hiring

Health & Human Services has posted information on their blog about how they are implementing the new hiring process for ALJs. Establishing a New Merit-Based Process for Appointing Administrative Law Judges at HHS explains the new process, the reasons for it, and when it became effective.

HHS is announcing how the department will implement a new ALJ selection and appointment process. The department’s ALJs work for the Office of Medicare Hearings and Appeals (101) and the Departmental Appeals Board (13). The DAB also has seven administrative appeals judges and five Departmental Appeals Board members, and the new ALJ selection and appointment process will apply to these “comparable officials” as well.

The new HHS ALJ selection and appointment process - PDF is effective immediately and is described on the websites of the OMHA and the DAB.

This process is described in the post as merit-based and does not require consultation with anyone outside of the process.  The process is described in detail in a 4 page document from November, 2018, available here.

To understand the significance of this change, read my blog post from October 26, 2018 here.

Hebrew Home at Riverdale New York: Site for New Report on Medical Marijuana

Last week, I wrote about the possible use of medical marijuana for treatment of anxiety in patients with dementia, pointing to the importance of peer-reviewed studies.  This week, I learned of a new study on the use of medical marijuana at a nursing home, and when I read the study I was not surprised to learn the study had occurred at Hebrew Home at Riverdale in New York, a location I have come to associate with both research and thoughtful innovation.  Studies of medical marijuana are complicated by the disjunction in federal and state laws governing purchase and use.

From a study published in JAMDA, the official journal for the Society of Post-Acute and Long-Term Care Medicine, this description in a press release:  

In “Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life,” the authors described a medical policy and procedure (P&P) they implemented at their New York-based SNF for the safe use and administration of cannabis for residents with a qualifying diagnosis. To be compliant with state and federal statutes, policy requires that residents must purchase their own cannabis product directly from a state-certified dispensary.

 

After the program started in 2016, the facility provided educational sessions for residents and distributed a medical cannabis fact sheet that was also made available to family members. To date, 10 residents have participated in the program and seven have been receiving medical cannabis for over a year. Participants range in age from 62 to 100. Of the 10 participants, six qualified for the program due to a chronic pain diagnosis, two due to Parkinson’s disease, and one due to both diagnoses. One resident is participating in the program for a seizure disorder.

 

Most residents who use cannabis for pain management said that it has lessened the severity of their chronic pain. This, in turn, has resulted in opioid dosage reductions and an improved sense of well-being. Those individuals receiving cannabis for Parkinson’s reported mild improvement with rigidity complaints. The patient with seizure disorder has experienced a marked reduction in seizure activity with the cannabis therapy.

This study did not address cannabis as a treatment for symptoms of dementia-related anxiety.  For more, see Medical Cannabis in the Skilled Nursing Facility:  A Novel Approach to Improving Symptom Management and Quality of Life, published January 2019.  Interestingly, the authors are a medical doctor, Zachary J. Palace, and Daniel Reingold, who lists both a Masters of Social Work and a J.D. for his background. 

Hearing Loss: The Impact is More Than Loss of Hearing

Know anyone who has hearing loss?  Maybe you yourself suffer from hearing loss-and if not now, you may in the future. Hearing loss has ramifications beyond the loss of hearing. As the article in the New York Times explains in Hearing Loss Threatens Mind, Life and Limb "[n]ot only is poor hearing annoying and inconvenient for millions of people, especially the elderly. It is also an unmistakable health hazard, threatening mind, life and limb, that could cost Medicare much more than it would to provide hearing aids and services for every older American with hearing loss." Oh and the news doesn't get any better: "[t]wo huge new studies have demonstrated a clear association between untreated hearing loss and an increased risk of dementia, depression, falls and even cardiovascular diseases. In a significant number of people, the studies indicate, uncorrected hearing loss itself appears to be the cause of the associated health problem."

Those with age-related hearing loss can tell you it doesn't happen overnight.  In fact, because it "comes on really slowly, [it makes] it harder for people to know when to take it seriously...."  The article explains the correlation between hearing loss and the impact on the brain (fascinating yet scary). And in case you didn't know "hearing aids and accompanying services are typically not covered by medical insurance, Medicare included. Such coverage was specifically excluded when the Medicare law was passed in 1965, a time when hearing loss was not generally recognized as a medical issue and hearing aids were not very effective...." 

So, do a few things now: 1.  write your Congressperson about Medicare's coverage of hearing aids, 2. schedule an appointment to have your hearing testing and 3. turn down the volume on your devices.

Quick Guidance for Students and New Attorneys Considering Elder Law

This is the time of year when students stop by to chat.  Perhaps they are first year students who want to talk about exame, or grades or class rank. But more often for me, it is students who want to talk about how to get into elder law. 

Along that line, a short article written by experienced attorney Monica Franklin, a CELA in eastern Tennessee, is helpful.  She begins with some values questions -- such as "do you have a social worker's soul and a nurse's curiosity?"  She points to the different subject matters that can be addressed under the heading of "elder law," from what she calls the meat and potatoes of estate planning, probate and conservatorship, to th more complex areas of "public benefits, health care advocacy, and special needs trust" planning.   

She recommends resources, including accreditation courses offered by the National Elder Law Foundation, cautioning that she personally found the certification exam to be "more difficult than the bar exam."  But she makes it clear she also found certification worthwhile, both as a goal to increase her own knowledge base, and because the recognition that attends status as a Certified Elder Law Attorney helps her practice base.

In her own state of Tennessee, she recommends becoming familiar with the Tennessee Justice Center, a "nonprofit law firm that has served vulnerable families since 1995."  Is there a similar specialized practice in your own region? 

Ms. Franklin concludes that her own state "needs more qualified elder law attorneys. It is a field where governmental actors often misinterpret the law to the detriment of our most vulnerable citizens:  older adults and individuals with disabilities."  

For more, see So, You Want to Be an Elder Law Attorney (available on Westlaw and behind a registration firewall), published in the Tennessee Bar Journal, February 2018.  

 

 

Is Hospital Care "Elder-Friendly"?

This article is a couple of months old, but I don't think the subject is at all dated.   Stat ran an opinion piece, U.S. hospitals ignore improving elder care. That’s a mistake explaining that hospitals aren't designed to be elder-friendly 

In the 21st century, health care is to elderhood as education is to childhood. But we don’t see bond measures for the “construction, expansion, renovation, and equipping” of hospitals to optimize care of old people, an investment that would surely benefit Americans of all ages.

People age 65 and older make up just 16 percent of the U.S. population but nearly 40 percent of hospitalized adults. In 2014, Americans over age 74 had the highest rate of hospital stays, followed by those in their late 60s and early 70s.

Remarkably, hospitals aren’t designed with elders in mind. Walk through one and you’ll almost invariably find cheerful decor for children, services and facilities aimed at adults, and a gauntlet of obstacles and insults to elders.

Thinking about the design of the hospitals, consider these notes from the article' "[o]ld people end up in old buildings. That usually means long walks down halls without railings or chairs with arms for rest stops. It means signs that are hard to read until you are right under them. It means a one-size-fits-all approach to both facilities and care that doesn’t acknowledge that the needs, preferences, and realities of a 75- or 95-year-old with a medical condition might differ from those of a 35- or 55-year-old with the same thing."

Noticing the volume of business from this demographic, the article highlights some efforts 

A collaboration of industry leaders, including the American Hospital Association, the John A. Hartford Foundation, and the Institute for Healthcare Improvement, has launched an age-friendly health system initiative. While its purview is limited to a few geriatric conditions, it’s a step in the right direction. (And the field of geriatrics is finally beginning to model itself after pediatrics, taking a more whole health, life stage approach to elderhood.)

Some of the best ideas for hospital design come from outside health care. Innovations developed for aging-in-place homes or continuing care communities offer prototypes of “silver architecture.” Businesses like Microsoft are investing in structural and people-flow design that meets needs across the lifespan. They are adopting the position that if you design for the mythical “average human” you create barriers, whereas if you design for those with disabilities you create systems that benefit everyone.

Relearning Basic Skills When Suffering with Dementia

There's no cure for Alzheimer's but according to a recent article in the New York Times, Dementia May Never Improve, but Many Patients Still Can Learn individuals with dementia can be taught certain forgotten skills. Known as "cognitive rehabilitation", "[t]he practice brings occupational and other therapists into the homes of dementia patients to learn which everyday activities they’re struggling with and which abilities they want to preserve or improve upon."  It's important to realize that this training won't reverse the decline from the disease, but instead "the therapists devise individual strategies that can help, at least in the early and moderate stages of the disease. The therapists show patients how to compensate for memory problems and to practice new techniques."  But, and this is important, the therapy can make a huge difference for folks with dementia---the "researchers have demonstrated that people with dementia can significantly improve their ability to do the tasks they’ve opted to tackle, their chosen priorities. Those improvements persist over months, perhaps up to a year, even as participants’ cognition declines in other ways."

Another approach being used in the U.S., the "T.A.P. program includes more patients with serious cognitive loss than cognitive rehab does. And it takes a somewhat different tack: T.A.P. aims to reduce the troubling behaviors that can accompany dementia: repeated questions, wandering, rejecting assistance, verbal or physical aggression" with the study showing "the frequency of such behaviors decreased compared to a control group, allowing family members to spend fewer daily hours caring for patients."

This is important research-read this article!

New Article: Age, Time & Discrimination

Professor Alexander A. Boni-Saenz at Chicago Kent has uploaded on SSRN his forthcoming article Age, Time & Discrimination.

Here is the abstract of his article

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.

The article will be published in vol 53 of the Ga. Law Review.

 

Medical Marijuana for Treatment of Dementia Agitation

Months ago, when my family was considering alternatives for care of my mother as her health deteriorated and her home became increasingly unsafe, I was talking with different providers about the challenges of care when the individual is a heavy smoker (as my mother, at age 92, still was at the time).  There are few options, and most licensed facilities bar smoking completely or limit it to locations that are not workable for someone with impaired movement.  I joked with one provider that smoking cigarettes was prohibited but that Arizona had recently authorized medical marijuana.  Arizona Statutes Section 36-2801 permits medical marijuana for those with debilitating medical conditions, including "agitation of  alzheimer's disease." 

The provider laughed and said, "oh, we don't permit smoking of marijuana either." I wasn't up-to-date on the technology!  Apparently the preferred dispensation at that location was via "gummies."  If you google "marijuana gummies" you get a remarkable range of products.

In this brave new world of medical marijuana, I can see reasons for the interest, especially in the search for safe and effective ways to help individuals whose form of dementia is marked by severe agitation.  Can marijuana "take the edge off" in a safe way?  Can doses be monitored and evaluated appropriately?  Do "gummies" provide reliable or consistent doses of the active ingredient, most likely THC?  Can there be an associated positive effect -- improved appetite (the proverbial "munchies")?  Are there reporting mechanisms on the effects of use, especially in facilities that provide dementia care, that will help capture success rates and any risks?  What about individuals with dementia who suffer from both agitation and delusional thinking -- could medical marijuana potentially reduce one symptom but increase another?  Is the CDC tracking medical marijuana gummies or other products in the context of dementia care?  

The National Conference for State Legislatures (NCSL) maintains a website on state medical marijuana laws.  NCSL reported that as of 11/8/18, 33 states, plus D.C., Guam and Puerto Rico, have approved "comprehensive" public medical marijuana programs, with additional states allowing limited use of "low THC, high CBD" products in limited situations that are not deemed comprehensive medical marijuana programs.

In January 2017, the National Academies of Sciences, Engineering, and Medicine released a report based on review of "over 10,000 scientific abstracts" for marijuana health research, offering 100 conclusions related to health and ways to improve research. The conclusions are organized according to whether there is "conclusive or substantial" evidence, moderate evidence, or limited evidence about effectiveness or ineffectiveness of medical marijuana in a variety of contexts.  One conclusion suggests there is limited evidence that cannabis or cannabinoids are effective for "improving anxiety symptoms," while a separate conclusion states there is limited evidence that such substances are ineffective for "improving symptoms associated with dementia."  

I'm relatively new to review of literature associated with medical marijuana for dementia care/treatment, and welcome hearing from others who are aware of authoritative sources of information. (And just to be clear, this isn't a product we're considering for my mother!) I can see this topic becoming more important with time in our aging world, especially as additional sources of dementia-treatment evidence may become available. 

What Boomers Value as Employee Benefits

According to AARP, employee benefits most valued by Boomers are  Health Insurance, Retirement Benefits Most Attractive to Boomer Workers

Boomer workers tend to place great importance on health insurance benefits and 401(k) matching contributions from their employers, according to a newly released Harris poll of 2,026 U.S. adults.

Gen Xers and younger adults also value these benefits but are somewhat more inclined than boomers to put a priority on paid time off and flexible work schedules, according to the poll, conducted for the American Institute of Certified Public Accountants (AICPA). 

The statistics in the article are interesting. For example, as far as what employee benefits are important: for the Boomers, 71% said health insurance and 67% said 401(k), 54% pensions while the millennials and Xers placed less importance on pensions, 16% and 34% respectively.  Millennials placed more importance on workplace flexibility compared to Boomers.  How long do the Boomers surveyed intend to continue working?  According to the article, 22% may retire within a year, 22% are considering cutting back on the amount they work and 13% are looking at a job change with only 14% likely to work more.

 

States Adopt "Work & Save" Programs to Promote Retirement Savings on the Job

I was chatting recently with Bill Johnston-Walsh, director of Pennsylvania's chapter of AARP.  I always enjoy catching up with Bill, as he gets involved in cutting edge issues and projects under development.

One of the hot topics he relayed to me are programs at the state level to support better on-the-job savings for retirement.  Almost gone are the days of defined benefit retirement plans and employers may not offer defined contribution plans either.  States are beginning to adopt laws that make it possible for employers to offer alternative, low-cost, voluntary approaches for employees, sometimes known as "Work & Save" programs, such as "OregonSaves."  Here's a summary from an AARP report in July 2018:

Oregon was the first-in-the-nation to launch this innovative solution with OregonSaves in 2017, and as of July 2018 they already have over 58,000 workers enrolled and nearly $4.6 million saved. Of those eligible at this time, 73% have enrolled, and participants are saving $46.42 per paycheck on average. Check out how OregonSaves is helping workers save here.

Elsewhere, this year, Washington opened the first ever marketplace version of Work & Save, Washington’s Retirement Marketplace, and Illinois started a pilot of their Work & Save program, Illinois Secure Choice, with their official launch coming this fall.

 

These states are not alone – across the nation, states are recognizing the need to help all workers grow savings so they can take control of their futures and deal with the rising cost of health care and living expenses. In the past 6 years, 40 states have acted to implement, study or consider legislation to create Work & Save programs.

Convenience and portability for the employees seem to be two key components of the new approaches.

 

What is Dead?

The Hastings Center addressed this in its latest special report, Defining Death: Organ Transplantation and the Fifty-Year Legacy of the Harvard Report on Brain Death. The abstract for the introduction explains:

This special report is published in commemoration of the fiftieth anniversary of the “Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” a landmark document that proposed a new way to define death, with implications that advanced the field of organ transplantation. This remarkable success notwithstanding, the concept has raised lasting questions about what it means to be dead. Is death defined in terms of the biological failure of the organism to maintain integrated functioning? Can death be declared on the basis of severe neurological injury even when biological functions remain intact? Is death essentially a social construct that can be defined in different ways, based on human judgment? These issues, and more, are discussed and debated in this report by leading experts in the field, many of whom have been engaged with this topic for decades.

 

A Curious Motivation for "Oldest Ever" Fraud

Recent news reports are focusing on the history of Frenchwoman Jeanne Calment, who died in 1997 at the purported age of 122 years and 164 days, a record that is still unsurpassed.

Some are convinced that she was not that old, and the possible motivation for the fraud is interesting.  Did a daughter assume the identity of her mother, rather earlier in the history, to avoid paying inheritance taxes?  One researcher notes the lack of any evidence of dementia as a clue.  

For more, see  "Researchers Claim  World Record for Longest Life a Case of ID Fraud" from CBS News. 

Do You Know Your Medicare Coverage?

As elderlaw profs, it's likely that we cover Medicare in our courses every semester. Whether you teach the subject or your are a beneficiary, how well do you know Medicare coverage basics? Kiplinger offers a short quiz on Medicare that allows you to test your Medicare IQ. The quiz, Does Medicare Cover That? is easy to complete and each question includes an explanation accompanying the answer.  And once you have finished this quiz, take the next one, True or False: Test Yourself on Social Security Claiming Strategies.

Check them out!

Signs of Our Times?

Walking through a grocery store last weekend, I noticed this interesting combination of magazines on display: