Elder Law Prof Blog

AALS Call for Papers/Presenters on Intersectionality, Aging and the Law

The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January.  The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."  

I like this definition of "intersectionality": 

The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.  Example:  "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."

We need great presenters!  

From Naomi Cahn at George Washington Law:

We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics.  The conception of the program is broad, and we are exploring publication options.

If you are interested in participating, please send a 400-600 word description of what you'd like to discuss.  Submissions should be sent to Professor Naomi Cahn, [email protected], by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.  

AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times:  The Power of Words

 

Getting Real about Cause of Death

Last week, I listened to an interview of a County Coroner in Pennsylvania.  The focus of the radio program was whether statistical accuracy for any State's determination of cause of death is important, especially during the COVID-19 pandemic. 
The coroner said "yes" to the softball, threshold question but then the interview took a surprising turn. The host next asked, "How do you characterize cause of death for possible COVID-19 related deaths?"  In Pennsylvania, there has been a bit of controversy on this topic, as detailed recently by the Philadelphia Inquirer.   For example, if the affected person, especially an older adult, had multiple co-morbid conditions, such as serious heart disease and diabetes, is the new infection with COVID-19 (a contagious disease and public health hazad) the "official" cause of death as recognized by Pennsylvania law at 16 P.S. Section 1218-B (as revised and effective on December 24, 2018)?

The particular County Coroner, however, took his answer down a whole different path, predicting that COVID-19 deaths may end up being characterized as "homicides," if or when the disease is proven to be manipulated or caused by a laboratory in China.  Whoa!

That track of analysis clearly startled the host, who tried to refocus the speaker's attention on the potential complicating factors that determine how death is related in whole or in part to the coronavirus disease.  But the coroner wasn't willing to walk back his speculation, and started talking about the need for openness to the possibility of foreign, criminal intention.

The interview was an abrupt reminder that documenting any cause of death can be complicated.  This can be especially true when the official in charge of the decision is an elected official. Elected officials, whether at the state or county level, may be subject to political views or pressures.  Further, Pennsylvania and a surprising number of other states permit but do not require elected or appointed coroners to have a medical or pathology degree as a qualification for the job.  In Pennsylvania, coroners for Class 2 and smaller counties -- the vast majority of its 67 counties --  are "elected."  In 2018, the state law was amended to require newly elected county coroners to take a 32 hour course of instruction relevant to crime-scene investigation, toxicology, forensic autopsies and the legal duties of a coroner.  Officials elected prior to the December 2018 effective date of that modernized law, however, are grandfathered into the credentials and are not required to take or pass any threshold test.

It seems that even without the one coroner's flirtation with conspiracy theories about the origination of the COVID-19 virus, Pennsylvania state officials were already trying to harmonize state and local policies about reporting COVID-19 as an official cause of death.  During the Spring of 2020, Pennsylvania's Department of Health issued "Guidance" for Coroners and Medical Examiners regarding reporting COVID-19 related deaths, and the policy appears to emphasize that most certifications reporting cause of death are to be made by "a medical professional who attended the deceased during the last illness." According to the Guidance, it is only when there is a "referral" to the County Coroner or Medical Examiner that the county official would have a role in making a death report under the state's Vital Statistics Law.  

Transparency Issues in Long-Term Care: The Potential for Misuse of Confidentiality Policies to Hide Infection Facts from the Public

Recently I was talking with a friend in another state who is the director of an assisted living facility that largely serves older adults who have significant risks factors.  I asked, "Have you had any residents or staff members that have tested positive for COVID-19?"  I asked her directly, because there was no way to know the answer to that question from public websites, either in her state or on a national basis.  The good news was that her facility had had no such diagnoses, either among staff or residents.  I also asked what she felt was key to avoiding infections, and we talked about the rates uncovered in other facilities in her own state.  She said bluntly, "We learned from our experience with influenza the last two years that we had to make real changes, and we did so before the COVID-19 was a reality and doubled down when we started hearing about the coronavirus." 

Internal infections have long-been a documented problem in residential care settings, and certainly not limited to so-called "nursing homes."  Contributing factors include residents who may have physical or mental conditions that make self-protection difficult and perhaps impossible.  My sister and I used to struggle mightily with a family member whose dementia interfered with the simple task of hand-washing -- even though this same person was the one who taught us the importance of soap and water from the time we were small children. It is perhaps ironic to recall that as a horse-mad girl I had tried to persuade both of my parents that there should be an exception for "barn dirt," on my theory that horse-related dirt was "clean dirt."  My mothers still insisted I undress on the back porch and wash thoroughly before coming in for dinner.  Wise woman, one who was quick to dismiss utter nonsense.

Fast forward decades and every day I hear new arguments regarding why facilities that have experienced life-threatening infections should not be required to report this in a public venue.  The most problematic argument is one that says an individual's infection is confidential medical information that prevents the facility from reporting statistical information, and thus an infection cannot be made public.  I've seen arguments about federal or state record-keeping policies such as HIPPA privacy rules or Pennsylvania's confidentiality rules  as the rationalization.  I think I know what my mother would call this kind of argument.

Syracuse Law Professor Nina Kohn tackles the history of mishandled safeguards against infections in long-term care with an Op-Ed for The Hill. In "Addressing the Crisis in Long-Term Care Facilities," Professor Kohn  points to specific actions at the federal level that have weakened, rather than strengthened, potential safeguards.   She makes five specific recommendations, including prohibitions on staff working in more than one-long-term care facility, to reduce cross-contamination, and the need for family members and others to make it clear that we "are paying attention to what is happening."  She reminds us:  "Those who are health care agents for nursing home residents should not be afraid to request access to medical records, as federal law entitles them to do, if facilities are not forthcoming with information about the care being provided."

ABA Commission Releases App on Mind Your Loved Ones

The ABA Commission on Law & Aging  has released their smart phone app, Mind Your Loved Ones (MYLO):

Mind Your Loved Ones, known as MYLO, is a mobile app that gives individuals the ability to store their own and their loved one’s critical medical information, health care directives, and other related data on their Apple or Android phones, iPads® or tablets. Users can send this information directly to health care providers (e.g. their doctors, hospitals, insurance companies, etc.), to their family members or trusted friends by email, fax, text, or print.

Whether away at college, in a retirement community or nursing home, traveling for work or leisure, MYLO has your information and documents, and those of your loved ones, accessible 24/7 with just a click.  That’s the power of MYLO–the perfect "just-in-case" app.

Here's some additional info about the app's capabilities:

With this app individuals can store on their smartphones their health care advance directives along with other key medical information-- such as medications, physician contacts, insurance information, medical notes, and any other material important to them. Loved ones whom the individual chooses can carry the same information on their phones. They don’t have to hunt for the information in their files or sign on to a web page to get it. There is no limit to the number of profiles that can be stored. Individuals and their loved ones will have immediate access to all the information if an event occurs when that information is needed, so that they can view it, email it, or fax it to whomever or wherever it is needed.

In the midst of this pandemic, having this info so easily accessible is definitely a plus.

Stay safe everyone!

APS and COVID-19

APS Technical Assistance Resource Center (APS-TARC) has unveiled a new web page on APS and COVID-19. Here's the explanation for the website: "The COVID-19 pandemic presents unique challenges for adult protective services professionals. Visits to clients' homes have been curtailed or eliminated in many areas and community services may be unavailable or reduced. This page details information about the effects of the pandemic on APS programs and additional information that may be helpful to APS professionals." The site includes resources and state responses, as well as other information on intake, investigations, post-investigations and quality assurance. Check it out.

Journal of Elder Policy Calls for Papers related to COVID-19, Policy and Older Adults

Our friend Professor Naomi Cahn at George Washington Law has advised us that the peer-reviewed Journal of Elder Policy is planning a special issue related to COVID-19.  Certainly the implications of policy in this pandemic are constantly in the news, and how appropriate to begin the process of analysis. 

Abstracts of 500 words are due by June 15, 2020.  Full papers of between 8,000 and 10,000 words are due by September 30, 2020.

Topics may include but are not limited to:

• Risk assessment, Ageism, Legislation to protect older adults,
• Community initiatives, Medical and nursing perspectives,
• Mental health challenges for elders, Family support or conflict,
• Helping and volunteering, Rationing of care, Challenges for caregivers

Authors should send their Vita and a 500 word abstract related to their paper by June 15 to Managing Assistant Editor, Kaitlyn Langendoerfer.  Details available here. 

The ever-busy Naomi is a member of the Editorial Board for the Journal.  Thank you for letting us know about this opportunity, Naomi!

A Tiny Bit of Positive Action

The news coming out of long term care facitilies about COVID-19 has been beyond comprehension. To compound matters, states that refused to release information about the facilities with COVID-19 cases compounded the trauma for families and patients. CMS has now issued a regulation for transparency, but no effective date was released with the notice:

 CMS is committed to taking critical steps to ensure America’s health care facilities are prepared to respond to the 2019 Novel Coronavirus (COVID-19) Public Health Emergency (PHE). • Communicable Disease Reporting Requirements: To ensure appropriate tracking, response, and mitigation of COVID-19 in nursing homes, CMS is reinforcing an existing requirement that nursing homes must report communicable diseases, healthcare-associated infections, and potential outbreaks to State and Local health departments. In rulemaking that will follow, CMS is requiring facilities to report this data to the Centers for Disease Control and Prevention (CDC) in a standardized format and frequency defined by CMS and CDC. Failure to report cases of residents or staff who have confirmed COVID -19 and Persons under Investigation (PUI) could result in an enforcement action. This memorandum summarizes new requirements which will be put in place very soon. • Transparency: CMS will also be previewing a new requirement for facilities to notify residents’ and their representatives to keep them up to date on the conditions inside the facility, such as when new cases of COVID-19 occur.

The press release accompanying the release of the reg gives some background:

[T]he Centers for Medicare & Medicaid Services (CMS) announced new regulatory requirements that will require nursing homes to inform residents, their families and representatives of COVID-19 cases in their facilities. In addition, as part of President Trump’s Opening Up America, CMS will now require nursing homes to report cases of COVID-19 directly to the Centers for Disease Control and Prevention (CDC).  This information must be reported in accordance with existing privacy regulations and statute. This measure augments longstanding requirements for reporting infectious disease to State and local health departments. Finally, CMS will also require nursing homes to fully cooperate with CDC surveillance efforts around COVID-19 spread.

CDC will be providing a reporting tool to nursing homes that will support Federal efforts to collect nationwide data to assist in COVID-19 surveillance and response. This joint effort is a result of the CMS-CDC Work Group on Nursing Home Safety. CMS plans to make the data publicly available.  This effort builds on recent recommendations from the American Health Care Association and Leading Age, two large nursing home industry associations, that nursing homes quickly report COVID-19 cases.

“Nursing homes have been ground zero for COVID-19. Today’s action supports CMS’ longstanding commitment to providing transparent and timely information to residents and their families,” said CMS Administrator Seema Verma. “Nursing home reporting to the CDC is a critical component of the go-forward national COVID-19 surveillance system and to efforts to reopen America.”

“Scientific data derived from solid surveillance is a key element of recommendations to protect Americans, particularly our most vulnerable, from the devastating impact of COVID-19,” said CDC Director Dr. Robert Redfield. “This coordinated effort with CMS will allow CDC to provide even more detailed information to state and local health departments about how COVID-19 is affecting nursing home residents in order to develop additional recommendations to keep them safe.”

This is an important step-keep an eye out for the effective date-which is hopefully sooner rather than later.

How COVID-19 is Revealing a Transparency Dilemma in Long-Term Care

My students at Dickinson Law often suggest important law and aging issues to explore and certainly the COVID-19 crisis is a daily source of topics.  High on the list in my students' minds have been the tragic stories connected to diagnosis and prognosis of the disease in "nursing homes."  Sometimes it is hard to even keep up with the stories.  Consider these headlines from the last few weeks:

• NYT on March 21, 2020:  The Coronavirus's Rampage Through a Suburban Nursing Home (in Washington State)
• NBC News on April 1, 2020:  Nursing Homes Overwhelmed by Coronavirus: 'It Is Impossible for Us to Stop the Spread" (focusing mostly on New York State)
• NYT on April 3, 2020: Coronavirus Sweeps Through a San Antonio Nursing Home (focusing on several facilities in Texas)
• Time on April 16, 2020: 18 Bodies Found Crammed Into Makeshift Morgue After Coronavirus Deaths Overwhelm New Jersey Nursing Home 

When my sister and I first realized that the novel coronavirus was likely to have a devastating impact on anyone with a compromised immune system, we quietly and sadly acknowledged our minor relief that our parents, who had both experienced dementia in the final months before their deaths, were spared at least this particular situation.   My sister went further and said, "If this had happened while Mom or Dad were still alive, I would have quit my job to apply for a job in their living center.  I wouldn't have been able to live with being forced to stay away, in essence abandoning them."

Anyone who knows my sister would know that would have been her heartfelt plan.  But it was also a reminder of something we knew so well from our experiences.  Even the very best of care settings -- whether in the individual's home, in assisted living, in supported independent living (such as in a CCRC), or in a skilled nursing facility -- need a loved-one's involvement.  On the one hand, the cared-for individual "lights up" when they see a family member arrive, even if the visit is just for a few minutes and even if the older person cannot quite remember the identity of the visitor.  No activity-based care program can entirely reproduce that positive impact.

But even the best facility also benefits from having the eyes and ears of family members to observe and make appropriate reports about concerns.  On my last sabbatical,  I stayed in Arizona to be near both of my parents, in their 90s.  Mom was still in the family home and Dad was in a truly caring, small, personal and well-staffed dementia care center.  One day I arrived to find my father deeply upset.  He said "I can't find my room."  I was worried that this meant his cognition had taken another turn for the worse. But, when I offered to walk him from his favorite outdoor bench to his room, it turned out he was right.  Everything that was once his -- his favorite chair, his clothes, his photographs -- were gone from his room.  I found out they were on their way to a different cottage.  More distressing, it was a cottage for individuals who no longer left their rooms -- and that wasn't my father's profile at all.  Suffice it to say, that "move" was reversed.  

That's a small example.  But when a pandemic means that family members cannot visit at all -- the opportunities for confusion and short cuts can increase in any care setting.  I don't know what the solution is; but I do know that the need for transparency in care, and for family members to feel welcome every day in every care setting, are important to quality of care.  And, of course, to quality of life for everyone.  

I'm hopeful that the COVID-19 pandemic will stimulate creativity and identify new ways of safely maintaining relationships for frail elders or others with delicate health profiles, while also still taking appropriate precautions to reduce the potential for high rates of cross-contamination and infection, including infections that cross the borders of the setting.  On my father's last full day, before a nighttime stroke left him in a coma, he and I had lunch together, we walked in the sunshine, and he had his favorite ice cream for a snack.  How I would hate to think of others missing such opportunities.  

Physical Distancing in Multi-Generational Housing

I've intentionally avoided posting on stories about elders and COVID-19. There's just so many stories daily. Here's a story, though, that I think is important to consider. That is-how do you protect your elder family member when multiple generations live in the same home? Kaiser Health News (KHN) tackled this issue in this story, Staying Away From Grandma’ Isn’t An Option In Multigenerational Homes.

Opening with the story of one family, the article describes the advantages ... and risks as follows:

Their living arrangement — four generations together under one roof — has its advantages: financial support, shared meals and built-in child care for [the] kids, now 5 and 3. But this “tier” generational setup also heightens their concerns as the coronavirus continues to march across the world, with young people positioned as potentially inadvertent carriers of the virus to vulnerable elders for whom COVID-19 could be a death sentence.

And there are a lot of families with this type of living arrangement. According to the article, "[m]ore than 64 million Americans live in multigenerational households ...  often a combination of adult children, their parents and grandchildren. That’s 1 in 5 U.S. residents."

These living arrangements seem to be increasing in popularity:

In some cultures, within the United States and elsewhere, multigenerational households are the norm. In recent years, more American families have adopted the lifestyle, some building homes with “granny flats” as baby boomers move in with their kids and vice versa. To be sure, the idea of combining households has always helped families get through tough economic times and life transitions such as death, divorce or job loss.

But did we anticipate the implications when a pandemic like COVID-19 hits?  The article offers some tips from experts on keeping everyone safe and how to make this "tiered" generational living situation continue to work, even as the virus continues to march into our communities.

Stay safe everyone.

Webinar Series on Elder Abuse

The California District Attorneys Association (CDAA) is offering a series of  five webinars during the last week of April.  The registration is $95 per webinar for non-members.  Information about the webinars and registration info is available here.  Here are the topics:

Elder Scams - Following the Paper Trail	4/27/2020
Expert Witnesses in Elder Abuse	4/28/2020
Accidental Injury or Criminal Elder Abuse?	4/28/2020
Elder Forensics: Over Grandma's Dead Body	4/30/2020
Not Just a Civil Matter - Inv. Complex Financial Elder Abuse	4/30/2020

Somewhere, Under a Rainbow...

I don't know if it is because we all have more time to appreciate the sky, or the sky is just more impressive lately.  But either way,

friends have been sharing photos of rainbows. Seems an especially nice way to respond to any crisis. 

Remote Notarization Expanding to Many States

Florida passed a remote notarization last legislative session that went into effect at the beginning of the year, with an electronic wills statute following. Recently we have seen a lot of states enacting emergency legislation or governors signing executive orders to authorize remote notarization. So many are stepping up, it's hard to keep track of which state has done what. The American College of Trusts & Estates Counsel (ACTEC) just released a chart, current as of April 8, 2020 that lists the various states authorizing this as well as state-specific details. The chart is available here. Check it out and bookmark it!

 

End-of-Life Decisions and Technology, Especially Ventilators

At Dickinson Law, in the last third of the Spring 2020 Semester, my Elder Law students are doing a module on End-of-Life Decisions.  I had planned this module more than a year in advance; certainly the timing has proven to be uniquely relevant.  Originally, my plan was for an in-depth discussion about choices related to assisted death, sometimes known as the Death with Dignity or Physician-Assisted Death.  And we are considering comparative studies and positions on legislation intended to support this choice, starting with a review of Oregon's more than 20 years of experience in providing this option.  

The COVID-19 pandemic, however, is triggering new focal points on end-of-life decisions.  Consider for example the statement by an emergency room chief in a San Francisco hospital, as quoted recently in the Los Angeles Times, "You have an 80-year-old and a 20-year-old and both need a vent and you only have one.  What do you do?"  Individuals may have thoughtfully made advance decisions about whether they want mechanical assistance in breathing during life-or-death circumstances.  They may have appointed an agent to speak for them or created written directions via living wills, DNR orders, or POLST documents.  But it is one thing to make you own decision; it is another to have the "decision" made because of lack of what is arguably baseline equipment.  

I've been particularly interested in the history behind ventilator shortages as reported by The New York Times.  

Thirteen years ago, a group of U.S. public health officials came up with a plan to address what they regarded as one of the medical system’s crucial vulnerabilities: a shortage of ventilators. The breathing-assistance machines tended to be bulky, expensive and limited in number. The plan was to build a large fleet of inexpensive portable devices to deploy in a flu pandemic or another crisis.

 

Money was budgeted. A federal contract was signed. Work got underway.

 

And then things suddenly veered off course. A multibillion-dollar maker of medical devices bought the small California company that had been hired to design the new machines. The project ultimately produced zero ventilators.

The rest of the story reads like a detective tale.  The small California-based company was proposing a new generation of easy-to-use, more cost effective, mobile ventilators.  By 2012, the partners were on schedule to file for market approval in September 2013, paving the path for production.  However, in May 2012, a much large medical device manufacturer bought the California-based company for just over $100 million.  Good news? That larger company might have especially strong resources for speedy production, right?

The new owner, Covidien, already made ventilators -- at a higher cost -- and in 2014, reportedly told federal officials they wanted to get out of the new ventilator contract.  The federal government agreed to cancel the contract. Covidien was sold to an even larger international company in 2015.

Why?  For more, read "The U.S. Tried to Build a New Fleet of Ventilators.  The Mission Failed," by Nicholas Kulish, Sarah Kliff and Jessica Silver-Greenberg, published in the NY Times on March 29 2020 and updated on March 31, 2020.  Or catch a NY Times podcast that looks further into shortages of hospital rooms, COVID-19 testing supplies and ventilator availability.  All interesting -- especially if you are talking about "end-of- life decisions."  

Make Your SSA Advance Designation Now, Just In Case?

Last week I got an email notification of a recent blog post from SSA.  Advance Designation: Choose a Representative Payee for Social Security to Consider Before You May Need One

Here's the info

The future can be uncertain. However, Social Security’s Advance Designation program can help put you in control of your benefits if a time comes when you need a representative payee to help manage your money.

Advance Designation enables you to identify up to three people, in priority order, whom you would like to serve as your potential representative payee.

The following people may choose an Advance Designation:

• Adults applying for benefits who do not have a representative payee.
• Adult beneficiaries/recipients who do not have a representative payee.
• Emancipated minors applying for benefits who do not have a representative payee.
• Emancipated minor beneficiaries/recipients who do not have a representative payee.

The blog post continues to explain more about how to do this and when it is used. The accompanying FAQ about the Advance Designation is available here.

Two Upcoming Webinars: COVID-19 & SSA and Medicare

Justice in Aging  has announced two upcoming webinars  on important topics. First up is a free webinar on April 10, 2020 on New Policies Related to COVID-19 at SSA  that covers the following:

The Social Security Administration (SSA) has made many changes to its policies and procedures in response to the COVID-19 pandemic. These changes impact all areas of the agency – the local offices, each state’s Disability Determination Service, and the hearing offices. This webinar will provide an overview of these changes, and offer suggestions for how advocates can interact with SSA during this unusual time.

Registration info is available here,

The second webinar, on April 14, 2020 covers Medicare and COVID-19.  Scheduled for 2 p.m. edt, this webinar will cover "The Centers for Medicare & Medicaid Services (CMS) and new legislation have changed many of the rules in Medicare to respond to COVID-19. This webinar will focus on the changes to Medicare that most impact low-income older adults."

To register for this webinar, click here. 

 

In Memory of Lori Stiegel

Lori Stiegel, a tireless and lifelong champion of elder justice, died a few days ago.  She educated and advocated during her professional career for the rights of elders and was one of the foremost authorities on elder abuse. She was also my friend.  We are all better off for her having been in our lives.  We miss you Lori.