Elder Law Prof Blog

Early Recommendation: Read "The Problem of Alzheimer's" by Dr. Jason Karlawish

A number of years ago, I had an email correspondence going with Dr. Jason Karlawish, Professor of Medicine, Medical Ethics and Health Policy, and Neurology at the University of Pennsylvania.  He was writing and speaking in intelligent, understandable ways about complex issues in degenerative neurocognitive disorders.  

My sister brought him back to my attention, as she had just heard Brené Brown's podcast interview with Dr. Karlawish.  Dr. Karlawish recently published an important book on The Problem of Alzheimer's.  I immediately ordered the book and I'm still reading, but I can tell this is -- and should be -- an important resource for anyone trying to understand or explain the Alzheimer's or other progressive impairments in cognition.  Frankly, that means all of us.  He is taking on an essential question:  "What's a good life when you're losing your ability to determine that life for yourself?"  The subtitle of the book helps explain the scope:  "How science, culture, and politics turned a rare disease into a crisis and what we can do about it."

I'm sure I'll write more hear about this book as I plunge ever deeper into the clear prose, organized in logical chunks, where I'm finding "gold" embedded on every page.  It is not a soothing read, but that is exactly why it is so important.

New Mexico Aid-in-Dying Law in Effect

On June 18, 2021, the New Mexico Aid-in-Dying law went into effect, according to an article published in the Albuquerque Journal,  Aid-in-dying law takes effect in New Mexico.

Under New Mexico’s new law, a doctor can issue a prescription for life-ending medication only after determining the patient seeking it has the mental capacity to make such a decision.

In addition, patients have to be able to self-administer the medicine and only those deemed likely to die within six months will be able to obtain it. There will also be a 48-hour waiting period to get the prescription filled, with narrow exceptions.

An earlier article highlighted some of the features of the new law.

The legislation will not force physicians, pharmacists or other health care professionals to provide life-ending drugs.

As the law is written, a terminally ill patient’s doctor can prescribe the drugs only after obtaining a second medical opinion and ensuring the patient is mentally and emotionally fit to make a choice about ending their life.

*     *    *  

[The head] of Compassionate Choices Action Network, said New Mexico’s bill is different from others because it allows nurse practitioners and physician assistants, as well as physicians, to prescribe the life-ending drugs.

While most states’ aid-in-dying laws include a 15-day waiting period between the time the patient receives approval for the drugs and when they can obtain the them, New Mexico’s waiting period is 48 hours.

HHS Inspector General Report on Medicare Beneficiaries' Deaths in SNFs

We all have heard the stories about the number of SNF residents dying during the pandemic. The Inspector General for HHS recently issued a report looking at the number of Medicare beneficiaries who died in SNFs during the pandemic, COVID-19 Had a Devastating Impact on Medicare Beneficiaries in Nursing Homes During 2020.

The executive summary explains:

Nursing home residents have been particularly affected by COVID-19, as they are predominately elderly, tend to have underlying conditions, and live in close quarters. However, data on the number of nursing home residents who were diagnosed with COVID-19 or likely COVID-19 have not been readily available, particularly for early in the pandemic. Nursing homes are not required to report cases and deaths that occurred before May 8, 2020.

This data snapshot provides objective, standardized data based on Medicare claims for all Medicare beneficiaries in nursing homes throughout the country. This data snapshot is the first in a three-part series. Subsequent work will address the characteristics of the hardest hit nursing homes and strategies used by nursing homes to confront the challenges of the COVID-19 pandemic.

WHAT WE FOUND

• Two in five Medicare beneficiaries in nursing homes were diagnosed with either COVID-19 or likely COVID-19 in 2020.
• Almost 1,000 more beneficiaries died per day in April 2020 than in April 2019.
• Overall mortality in nursing homes increased to 22 percent in 2020 from 17 percent in 2019.
• About half of Black, Hispanic, and Asian beneficiaries in nursing homes had or likely had COVID-19, and 41 percent of White beneficiaries did.
• Understanding the pandemic's effects on nursing home residents is necessary if tragedies like this are to be averted.

Note that this is the first of 3 reports on the topic.  The full report is available here.

SNF Employees Vaccination Rates Important to Residents

We have read stories about the efforts in various states to encourage folks to get vaccinated.  Bloomberg Law ran a story last week that looks at the impact on SNF residents when staffers are not vaccinated. ‘Flat-Out Resistant’ Staffers Imperil Nursing Home Vaccine Goal  gives this data:

An industry effort to vaccinate 75% of nursing home staff against Covid-19 by July 1 appears to be faltering as continued employee hesitancy, declining infection and death rates, and general pandemic fatigue are making it tough to sustain the urgency necessary to meet the lofty goal.

Only 1,133 nursing homes—less than 10% of the roughly 15,000 Medicaid- and Medicare-certified facilities—had reached or surpassed the 75% staff vaccination threshold by the end of May, new federal data shows. And only 50% of staff have been inoculated at nursing homes that have provided the recently required vaccination data.

We all know how the pandemic ravaged many of the SNFs, and the article offers this: "Nursing homes and other long-term care facilities have been the epicenter of the Covid-19 outbreak, accounting for nearly 184,000 deaths and more than 1.4 million infections as of May 10, according to the Kaiser Family Foundation. Infected staffers are believed to be the cause of much of the carnage."

Facilities are taking various measures to increase the vaccination rates amongst staff. Some are doing one on one counseling, others are opting to require vaccination as a condition of employment.  What are the barriers to vaccination? "Along with concerns about the vaccines’ rapid development and potential side effects, [staff] reluctance to get the shots reflects a combination of misinformation, cultural distrust of the medical profession, and a growing anti-vaccine sentiment that’s taken hold across the country.... [with such] hesitancy [continuing] even though more than 1,900 nursing home workers have died from Covid-19, while nearly 585,000 have been infected, federal data shows." Some facilities are offering incentives.  One helpful resource, "[t]he Agency for Healthcare Research and Quality has produced a how-to, best practices guide to building vaccine confidence among CNAs."

 

Florida Governor Signs Bill for Personal Care Attendants in SNFS

Yesterday, the Tampa Bay Times ran this story, DeSantis signs controversial bill to boost staffing at nursing homes. According to the article, "HB 485, which Gov. Ron DeSantis signed ..., allows a type of worker known as a “personal care attendant” to count towards the staffing requirements for nurse assistants, though they have less training and a more restricted role in the type of assistance they can provide."  Notice that this category of employee counts toward the staffing numbers.   The article notes that previously this was  "intended as a tourniquet to help mitigate staffing shortages at nursing homes during the pandemic, [and now the] new law will make permanent a program that allows facilities to hire less experienced employees to supplement the work of nursing assistants, who are able to provide more complex care for seniors." The article discusses the long standing staffing requirements in Florida and how that was impacted by the pandemic.

In March 2020, as more staffers became infected with the virus or quit due to health concerns, the state implemented an emergency program that allowed nursing homes to temporarily hire personal care attendants to help amid the deficit.

Personal care attendants assist with daily living activities. After 16 hours of training, they’re able to begin caring for residents and, through hands on experience, are meant to continue learning on the job. They can do so for up to four months — at this point, they must take the exam to become a certified nursing assistant if they wish to continue working at a facility.

The article notes objections by those concerned at the impact of the new law.  "By allowing personal attendant care to be counted as if it was time a licensed nurse assistant spent caring for a resident, critics fear the law will be used to hire fewer nurse assistants, who are paid higher salaries and cost nursing homes more, in favor of less-qualified staff." Proponents offered that this new position can serve as a training opportunity for those who want to become CNAs.  The article offers that no Florida "agency appears to be tracking the program’s success in creating future nurse assistants. Florida’s Agency for Health Care Administration, the Department of Elder Affairs and the Department of Health all said they do not collect data related to this information."

We will have to wait to see if this new position becomes a recruitment tool for more CNAs.

One Family's Caregiving Experience

Richard Kaplan, elite elder law professor and friend, sent me the link to this recent article from the Wall Street Journal, One Family’s Lessons Learned From a Decade of Caregiving.

As do many families, the spouse committed to caring for his spouse with dementia. 

The family learned much along their decade-long caregiving journey, about setting up trusts, getting help in the home and respecting each other’s decisions. They think about a few things they would have done differently. And they found that caregiving, while relentless and heartbreaking at times, can also be rewarding.

Being a family caregiver is one of the most difficult jobs and one that nearly everyone will have at some point. An estimated 42 million people in the U.S. provide unpaid care to those 50 and older, a 14% increase since 2015, according to the Caregiving in the U.S. 2020 report by the National Alliance for Caregiving and AARP.

Each family is different, and what works for one family may not work for another, says  ... [the] chief executive of the National Alliance for Caregiving. Family members don’t always agree about when to call in hospice or sell a house, but it’s important to be supportive, she says. “The hardest thing to say is, ‘It’s not the choice I would make, but I want to honor their choice.’ ”

The story is heartfelt, and compelling.  The caregiver spouse offers this advice as to what changes he would have made.

He would have gone to an elder-law attorney earlier to make sure their assets were in a trust that would better protect them from having to be spent down to qualify, if needed, for Medicaid’s coverage of long-term care costs.

And he would have bought a single-story patio home within walking distance of their church and shopping center when [his spouse] suggested it 20 years ago. “It was what [she] wanted to do, but I wanted the yard. My own little domain. I wish I would have,” he says. “Here I am now with this big house, by myself. I’ll probably reach a point where I can’t take care of it.”

Knowing how hard it is to provide hands-on care, and not wanting to be a burden, he recently told his daughters, “Just put me in a nice place. You don’t have to do what I did for mom. You don’t have to take me into your house. I don’t want that.”

I'm assigning this reading to my students.  Thanks Professor Kaplan!

Debt and Elders: GAO Report

This GAO report is a couple of months old, but I think it's important enough to bring it to your attention,  Retirement Security: Debt Increased for Older Americans over Time, but the Implications Vary by Debt Type.

Here are the fast facts from the report:

Older Americans held nearly half of the total debt in 2020—debt that may affect their retirement security. We found that older Americans had significantly more debt in 2016 than in 1989.

We also found that low-income, older Americans had greater "debt stress"—the ratio of debts to assets. In 2016, debt stress was about two times higher for minority households than White households.

Experts said that different debt types (credit cards, housing debt, etc.) have varying effects on retirement security. For example, carrying credit card debt with high variable interest rates may make it difficult for the elderly to save for retirement.

The full report is available here, the highlights here.

The Importance of Advocacy and of Opal Lee, Who Helped Make Juneteenth a Federal Holiday

Our law school, Dickinson Law, has been engaged in an important reflective process the last year, under the leadership of key individuals including Danielle Conway and Dermot Groome, among others.  We have worked together and separately to think about inclusion, and race, and discrimination, and difference,  and about how "the law" plays a part in making matters better or worse.  

On this first official, national celebration of the history of Juneteenth, I'm finishing reading a remarkable book, How The Word Is Passed by Clint Smith.  The journalist and poet uses his personal journeys to a number of locations inside and outside the U.S. that have been part of the history of slavery in the U.S.  One chapter is devoted to Galveston Island and its complicated history as the site where a Union general is said to have stood on the balcony of a villa in 1865 to announce the end of slavery to the people of Texas.

Mr. Smith attended one of the annual Texas state  Juneteenth celebrations at that villa and he writes about the impact on his own life's history as he watched Galveston youth narrating a chronology of events that shaped both slavery and its aftermath:

I watched these young people read to the audience parts of history that placed our country in context.  I felt, in that moment, envious of them,  Had I known when I was younger what some of these students were sharing, I felt as if I would have been liberated from a social and emotional paralysis that for so long I could not name -- a paralysis that had arisen from never knowing enough of my own history to effectively identify the lies I was being told by others:  lies about what slavery was and what it did to people; lies about what came after our supposed emancipation; lies about why our country looks the way it does today.  I had grown up in a world that never tired of telling me and other Black children like me all of the things that were wrong with us, all of the things we needed to do better.  But not enough people spoke  about the reason so many Black children grow up in communities saturated with poverty and violence.  Not enough people spoke about how these realities were the result of decisions made by people in power and had existed for generations before us.  

 

After college, when I was doing more reading on my own, I began to understand all that has happened to our communities, to our people, over generations -- it was liberating.  I had language to name what I felt but had never known how to say.  People sometimes believe that if they talk to Black youth about the historical legacy of slavery -- and the intergenerational iterations of systemic racism that followed -- young people will feel overwhelmed and shut down.  But there is enormous value in providing young people with the language, the history, and the framework to identify why their society looks the way it does. . . . I watched these young people share this history, and I dreamed of what it might mean if we could extend these lessons to every child.  How different might our country look if all of us fully understood what happened here?  

Mr. Smith wrote these words in the book that was published just this month, June of 2021, without knowing what was about to take place.

A woman who also recognized the power of this history, is Opal Lee, whose lifetime of advocacy began with her own home in Marshall, Texas, where on Juneteenth, 1939 an angry mob of white supremacists set fire to the home of 12-year-old Opal.  She is now 94-years-old.  She sat next to President Biden as he signed the legislation to make the today a national holiday of remembrance and celebration.  Opal Lee, "the Grandmother of Juneteenth," has been walking -- marching -- for most of her life in support of this moment.  But, as Clint Smith observes, "The project of freedom, Juneteenth reminds us, is precarious. . . ."

Read more about Opal Lee here, from the Washington Post.  

Using Digital Skills for Advocacy With State Legislators

Last week Kaiser Health News ran a story about elders in SNFs using their digital skills tor each out to their legislators, Zooming Into the Statehouse: Nursing Home Residents Use New Digital Skills to Push for Changes.

Nursing home residents who have been using digital technology to reach out to family and friends — after the covid pandemic led officials to end visitation last year — could also use it to connect with elected officials once the legislature moved to remote hearings.... 

The combination of a virtual legislature and nursing home residents equipped with internet access has created an opportunity most nursing home residents rarely have — to participate in their government up close and in real time.

  *    *    *

So far this year, nursing home residents have testified in support of legislation to improve staffing levels, create a designated “essential support person” with special visitation privileges, and allow “technology of their choice” in their rooms to communicate with whomever they wish, among other proposals. The latter passed unanimously in both chambers, said [Connecticut AARP’s advocacy director] “and we expect the governor to sign it into law.” 

One legislator has introduced a bill to permanently allow virtual advocacy there.

New Elder Justice Resource Guide

The New York courts have released a new Elder Justice Resource Guide, "the result of collaboration between The Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale and the New York State Unified Court System’s Division of Policy and Planning, and ... provide[s] a list of resources, information and support for New York’s judges, court personnel, and other legal professionals."

The 136 page guide is available online or as a pdf, and covers various topics. "The Elder Justice Resource Guide includes information about elder abuse, accessible courtrooms for older adults, capacity and confusion, effective communication, and available resources for older adults experiencing abuse. The Guide also includes a comprehensive directory of national, state, and local services available to older adults."  (I particularly was interested in pages 12, 16-18 where Stetson's own Eleazer Courtroom is mentioned!)

Is DePrescribing The Answer for Too Many Prescriptions?

The New York Times recently ran an article examining polypharmacy problems in  elders, Looking to Tackle Prescription Overload. "[P]olypharmacy refers to an increasing overload of drugs that may not benefit the patient or interact well with one another, and that may cause harm including falls, cognitive impairment, hospitalization and death. It has sparked interest in “deprescribing”: the practice in which doctors and patients regularly review medication regimens to prune away risky or unnecessary drugs."

One solution, the focus of this article, is deprescribing. For example, "the Drive to Deprescribe campaign, [was] launched last month by the Society for Post-Acute and Long-Term Care Medicine, known as AMDA, which represents medical directors and administrators of long-term care facilities, where polypharmacy is particularly prevalent."

 

The effort is underway, seeking "a 25 percent reduction in medication use within a year...." and so far, "2,000 facilities have enrolled, along with three major consulting pharmacies that serve them...."  That may be seen as a drop in the bucket to some, but it is a start.  As well, two years ago " the U.S. Deprescribing Research Network, [was] established ... and funded by the National Institute on Aging. So far, it has awarded nine grants to test effective deprescribing strategies."

 

The article discusses the challenges to successes, including the U.S. health system, where specialists may work in silos vis a vis a specific patient,  more time may be needed with a patient, and just plain old inertia. Deprescribing isn't just a simple "stop taking this drug."  The article points out that patients may always ask their doctors to reexamine the need for a certain prescription.

 

Fascinating article!

 

Uniform Law on Brain Death

Bloomberg recently published an opinion regarding the Uniform Definition of Brain Death, A Scary Plan to Revise the Definition of Death. "People may be less willing to agree to be organ donors if they believe the quest for organs changes how patients are treated."

According to the article, the Uniform Law Commission has a study committee, looking at "the need for and feasibility of updating the Uniform Determination of Death Act (1980), which has been enacted in 44 states. Issues to be considered include lack of uniformity in the medical standards used to determine death by neurologic criteria, the relevance of hormonal functions, and whether notice should be provided before a determination of death."

The Bloomberg article mentions an opinion piece published last year in the Annals of Internal Medicine which the Bloomberg article suggests is concerning.  The Bloomberg article examines the elements of the proposal and reviews the advantages of it, but also notes opposition to it. "Despite all the arguments in favor of the revisions, more than 100 experts in medicine, law, philosophy and bioethics have signed a statement of opposition...."

The article discusses the objections and how the proposal might reduce the amount of organ donations. The article is very interesting and if you could End of Life planning in your classes, this article gives you some thoughtful background.

 

What Standards Should be Used for Seeking Consent for Alzheimer's Treatment, including Aduhelm?

The CEO for Biogen, the publicly-traded biotechnology company that developed Aduhelm, issued a statement about the company's policies and plans for the new drug in conjunction with the FDA's announcement of its accelerated approval of the drug for patients with Alzheimer's Disease.  He writes in part:  

The approval of ADUHELM represents a crucial inflection point in our collective battle against Alzheimer’s disease. By addressing a defining pathology of the disease, this novel therapy has the potential to help fundamentally change the way patients are diagnosed and treated. 

 

I have hoped for years that we would reach a moment like this. We all know the staggering numbers: there have been at least 100 drug development programs discontinued since 2003—the last time a new Alzheimer’s drug was approved. What it tells us is that the path for innovation is not straightforward, especially for something as complex as Alzheimer’s research. The journey during Biogen’s many years of research and development has been humbling, but we have learned from industry’s past research efforts and been determined to follow the science, always driven to address patients’ unmet needs. 

 

ADUHELM is a first-in-class approved therapy: I believe it will be the catalyst to a new era of innovation for Alzheimer’s disease, and the first of many new treatments available to patients. More resources will be drawn into research that can help patients through the disease continuum, explore new pathways, and find potential therapy combinations.  

The use of this drug involves some important questions about patient consent, precisely because the drug will most likely be used with people who have "confirmed presence of amyloid pathology and mild cognitive impairment or mild dementia stage of disease, consistent with Stage 3 and Stage 4 Alzheimer’s disease," the group of patients who took part in the pre-approval clinical trials.  What is the process for obtaining such consent with cognitively-impaired patients?

Several articles have explored this topic outside of the specific drug in question:

In England, the nonprofit organization Physiopedia, offers a detailed protocol for informed consent in the context of cognitive impairment.  For example, it suggests assessment of competence involves paying attention to four main abilities:

1. The person must have sufficient capacity to understand the information. If the study involves a considerable degree of risk, more information must be provided, particularly about possible risks and benefits, and the potential participant must be able to understand such information.

2. The person must be able to retain, use and weigh up such information long enough to be able to make a decision. In addition, they must also be able to understand what the decision is about, why they are being asked to make it, and what the consequences of making or not making that decision might be. 

3. Possible benefits, risks and inconvenience linked to participating in research must be understood and weighed against the person’s own values and goals, which means that the person must understand how participating might affect him/her personally (High, 1992 and Stanley et al., 1984 in Olde Rikkert et al., 1997).

4. The person must have the ability to communicate his/her decision.

See also:  "Informed Consent in Two Alzheimer's Disease Research Centers: Insights from Research Coordinators," by Christin M. Suver, and others, published April-June 2020, and announcing the plan to use the research to assist in development of "an electronic informed consent (eConsent) designed to boost engagement, enhance trust, and improve understanding by supporting participants' direct agency in the IC process."  

In Search of the Abracadabra for Alzheimer's Medicines

I used to follow (and regularly blog about) new drugs in the pipeline for Alzheimer's treatment.  Then I realized that the drugs weren't making it to the market place.  While attending medical programs about R & D, I learned that it was going to be tough to find any magic treatments, much less "cures."

To it was interesting to read this week that for the first time in some 18 years,  the FDA has approved use of a new drug, with the marketing name  Aduhelm and the generic name Aducanumab  (kind of sounds like abracadabra, doesn't it?), manufactured by Biogen.   

Aduhelm is described by the FDA as an "amyloid beta-directed antibody," which was approved under an "accelerated approval pathway," to give "patients suffering from a serious disease earlier access to drugs when there is an expectation of clinical benefit despite some uncertainty about the clinical benefit of the drug." 

But there is a lot of sobering news accompanying this announcement:

First, the mechanism of delivery:  monthly intravenous infusions, which means a clinical visit lasting at least an hour per infusion.

Second, Biogen's own predictions about cost:  a "list price" predicted to average  $56,000 per year per patient!  Yikes.

Third, the critical response from a range of experts in relevant research, pharmacy and health fields about the approval process to date, indicating a history of interruptions in the clinical trials when preliminary results showed little to no evidence of clinical benefit. 

Fourth:  the need for assessment before the first infusion with an MRI, plus recommended follow up MRIs prior to the 7th and 12th infusions, to assess the potential for ARIA-H, which are amyloid-related abnormalities, also potentially associated with edema in the brain.

Here are some links (and I'll try to keep this list up-to-date as new info comes in):  

Draft Evidence Report dated 5/5/2021 from the Institute for Clinical and Economic Review on "Aducanumab for Alzheimer's Disease: Effectiveness and Value." 

Letter from American Geriatrics Society dated 6/2/2021 to FDA expressing concern about "premature" approval

STAT's commentary, dated June 7, 2021 on FAQs: What You Need to Know about the Alzheimer's Drug Aduhelm

New York Times, dated June 8, 2021:  FDA Approves Alzheimer's Drug Despite Fierce Debate Over Whether it Works

Webinar on Resuming SNF Visitation & Spotting Trauma

Register now for this  June 18 (3 eastern) webinar, NORC Webinar: Resuming In-Person Visits During COVID-19: Tips for Identifying Trauma, Potential Abuse, and Supporting Residents

In recognition of World Elder Abuse Awareness Day (WEAAD) join us to learn how to identify and respond to signs of trauma and potential abuse or neglect and support residents as Ombudsman programs resume in-person visits during the COVID-19 pandemic.

Dr. Laura Mosqueda, a national and international expert on elder abuse and neglect, will provide tips for Ombudsman programs conducting in-person visits, such as signs of trauma in response to isolation and loss during the pandemic and potential signs of abuse and neglect. She will also share recommendations for supporting residents and available resources. As an accomplished physician and researcher, Dr. Mosqueda has testified in front of Congress and has been invited to the White House several times to discuss elder justice initiatives. She has taken the lead on landmark studies to identify forensic markers of abuse and neglect and serves as a volunteer representative for the California Long-Term Care Ombudsman program.

Attendees will also hear from two Ombudsman program representatives as they share their experience resuming in-person visits and highlight what they observed upon reentry, how they supported residents, tips for visits, lessons learned, and successful practices.

Click here to register.

Call for Papers: Under Pressure: Legal And Systemic Responses To The Psychological Trauma Associated With Covid-19

Shepard Broad College of Law @ Nova SE has announced a call for papers for their Spring 2022 Symposium, Under Pressure: Legal And Systemic Responses To The Psychological Trauma Associated With Covid-19.

Nova Southeastern University (“NSU”) Shepard Broad College of Law and the Nova Law Review
seek submissions for the Law Review’s annual Symposium on March 11, 2022. Since January
2020, COVID-19 has ravaged the United States’ population physically, economically, and
psychologically. Caused by the novel coronavirus SARS-CoV-2 (“COVID-19”), the pandemic
simultaneously decimated the population, shuttered businesses, and traumatized those
experiencing its effects. Consequently, increased prevalence of mental, neurological, and
substance use disorders already has and will continue to present the legal system with challenges of previously unknown proportions. As mental health professionals substantiate and address the negative impacts of uncertainty, fear, isolation, and economic hardship, legal issues are multiplying.

The Nova Law Review invites academics, scholars, practitioners, and stakeholders to submit
proposals for panel presentations on topics involving the legal impact of the psychological trauma produced by COVID-19 in the United States. (see website for topic ideas).

SUBMISSIONS & IMPORTANT DATES:
Please submit materials to [email protected]
- Submission Deadline for Abstracts: July 16, 2021
- Submission Deadline for Articles: January 14, 2022
- Symposium Date: March 11, 2022
LAW REVIEW PUBLISHED ARTICLES: The Nova Law Review will review, edit, and publish
submissions in the 2022 Symposium issue. Articles, as well as case studies and abstracts of
research in progress, will be considered for the Symposium Program for presentation purposes.
Only complete articles, however, will be published in the Law Review. Abstracts for these papers will be due no later than the July 16, 2021 deadline and will be accepted on a rolling basis until that time

There are also opportunities to present without submitting an article for consideration for publication. More information is available here.

Lessons I Learned from F. Lee Bailey (Who Passed Away on June 3)

Early in my career, I had a ringside seat for was supposed to be a "big" trial for F. Lee Bailey, who passed away at the age of 87 earlier this week.  Reading about his career has brought back memories. 

In 1983, Mr. Bailey represented one of New Mexico's most prominent criminal defense lawyers of the time, William Marchiando, on libel allegations against the state's largest newspaper, The Albuquerque Journal.  My firm represented the Journal.  During the trial I was a mere "helper" (although I had a surprising opportunity to handle aspects of a post-trial motion).   The trial focused on an article where Mr. Marchiando's photo appeared prominently, just below a provocative headline, "Organized Crime Showing Interest in New Mexico."   

One consequence of suing a newspaper for libel is that every minute of the trial was covered by media, and that meant weeks of news coverage, a fact not lost on Mr. Bailey, who was premiering his new television show that same year, a program called "Lie Detector."

The 8-week trial took place in the southern New Mexico city of Las Cruces (on a change of venue from Albuquerque).  After 4 days of deliberations, the locally-selected jury voted, 10 to 2, that there was no defamation. The jurors included retired military, members of local farming and ranching families, and several hard-working school teachers. 

The newspaper took the position that truth was their defense, a decision that probably startled the plaintiff.  I recall hearings about admissibility of tape recordings of the plaintiff meeting with prisoners at New York City's infamous "Tombs," allegedly discussing organized crime-related "business," rather than matters pertaining to any representation of the defendants in their criminal cases.   One of the Journal's trial witnesses, via video-recording, was "Jimmy the Weasel" Fratianno, who was a confessed hitman for "the mob."  (I was flown one night, via a private jet, to conduct a pretrial interview of  "Jimmy" at an undisclosed location, one of the spookier events of my early career).  

Some of Mr. Bailey's obituaries mention his "photographic memory" and I saw that in action.  He handled direct and cross examination of witnesses without any notes, and, perhaps most impressively, would accurately quote lengthy sections of depositions when seeking to "impeach" a witness, again without any paper in his hand.  His oratory was delivered with a deep voice that had a touch of gravel in it, and he was always impeccably dressed.  

In contrast, the Journal's primary trial attorney (and my boss), Eric Lanphere, was much less showy.  Indeed, the publisher of the paper ruefully shook his head as his attorney crossed the courtroom one afternoon during trial, trailed by a floating, long piece of toilet paper stuck to one heel.  "That's my attorney -- sort of looks like Columbo, doesn't he?," he mused.  But Mr. Lanphere also had his own talents, and the key talent was being down-to-earth, rational, and equally oriented to details, albeit not necessarily delivered from memory.

My real lessons came during preparation for the post-trial hearings. We were responding to the plaintiff's attempts to reverse the verdict, claiming there was juror misconduct (ultimately an unsuccessful effort).  My task began with interviewing as many of the 12 jurors (and the alternates) as would speak to me, to get their take on the trial and deliberations.  Along the way, I asked them what they thought of Mr. Bailey's flair in the courtroom.  Usually the juror would smile and give me an account of some especially impressive detail of Mr. Bailey's performance.

Then I would ask, "how did Mr. Bailey affect your vote in the case?"  And each juror, regardless of their vote, quickly responded that as much as they enjoyed Mr. Bailey's "tricks," (their frequent label), they knew their job was to evaluate the evidence presented by witnesses and exhibits.  The trial judge had delivered those instructions with a very firm voice. The jurors made it clear to me they weren't going to allow themselves to be swayed by the performance of any attorney.  The "facts" mattered, and mattered especially, it seemed, when presented by the more humble attorney in the room.  

Webinar on Housing & Community Services

The National Center on Law & Elder Rights has opened registration for an upcoming webinar on June 17 starting at noon eastern.  What it Takes to Age in Place: Bringing Housing and Home and Community-Based Services (HCBS) Together will cover:

Most people want to age in place and stay near their friends and family and in their community. This ideal can become complicated when housing becomes unstable or unaffordable, or when supportive services are not available in the home and community. This training will explore the intersection of health and housing to support aging in place. It will provide information about Medicaid home and community-based services, as well as what housing-related services can be funded through Medicaid.

Participants will:

    1. Understand the connection between health and housing;

    2. Learn the different ways that Medicaid can fund HCBS to keep people in their homes or create housing for people experiencing homelessness; and

    3. Hear about examples of different community models that have integrated housing and health care to support housing stability, including for previously homeless older adults.

Presenters: • Patti Prunhuber, Senior Housing Staff Attorney, Justice in Aging • Claire Ramsey, Senior Health Staff Attorney, Justice in Aging

Click here to register.

RFP for The Aging, Health, Equity, and the Law Conference

It's not too late to submit a proposal to present at the Aging, Health, Equity, and the Law  virtual conference September 13, 2021. Here's info about the conference:

• Hosted by Touro Law Center,
• Theme: structural and systemic questions about discrimination and equity that older adults experience, and on policies recognizing these different challenges and promoting equity.
• Due Date for presentation proposals: June 18th.
• Registration is free
• Conference website www.tourolaw.edu/ahelc.
• Questions: contact Professor Foley at [email protected] 

 

Pushing Back Against the Disappearance of the "County Home"

In Carlisle, a classic college town in Central Pennsylvania, the hottest topic at the moment is, surprisingly enough, the "county" nursing home.

"Save Claremont" signs outnumbered the political signs in the recent primary election.

A robust advocacy movement seeks to prevent the sale of Claremont Nursing & Rehabilitation Center, a publicly-administered facility with 282-beds to private enterprise.  In a detailed story carried by local newspaper, The Patriot News, both sides of the issue are making their pitches:  

 

The members of Citizens Saving Claremont are arguing the county not only can keep Claremont afloat, but with some effort, investment and leadership, they can make it thrive.

 

"It has been sustained for 192 years," said Tim Potts, one of the founding members of Citizens Saving Claremont. "This year, 2021, is the first year that we've had to use county money to support Claremont, and that's only on a temporary basis because of the impact of COVID." . . .

 

But that doesn't change the fact that Claremont is hemorrhaging money, Cumberland County Commissioner Gary Eichelberger said.  Projections show it will only get worse and will have to be propped up by taxpayer dollars.  

 

And the completion of a sales agreement could be just days away.

For some advocates, keeping the facility in public hands is about maintaining a commitment to citizens of all income levels, and they point out that Claremont's Medicare "star" rating has usually been higher than private enterprise nursing homes in the region.  As recently as 2002, as many as 40 of Pennsylvania's 67 counties had "public homes"; but, currently just 21 remain in county hands.

For more see Citizens Group Pushes to Save Claremont, published online behind a paywall on June 1, 2021 and on the front page of the traditional newspaper format on June 4, 2021.