Elder Law Prof Blog

Surveillance When Using Tech to Age in Place?

It's not "Big Brother ... Watching You." (If you are a Baby Boomer, you will likely remember the phrase.)  So who is watching if you are using tech to age in place?  The Washington Post addressed this question in For seniors using tech to age in place, surveillance can be the price of independence.

On the surface the benefits of home and health monitoring technology seem obvious. A flow of information about the older person can put a caretaker at ease and help keep track of physical or cognitive decline. It is a way to extend the amount of time they are able live in their own homes before moving to someplace like a retirement or nursing home.

But the devices, many of which grew out of security and surveillance systems, can take privacy and control away from a population that is less likely to know how to manage the technology themselves. The idea of using tech to help people as they age is not a problem, say experts, but how it’s designed, used and communicated can be. Done wrong or without consent, it is one-way surveillance that can lead to neglect. Done right, it can help aging people be more independent.

New tech is being developed according to the article, and the article points out that the tech requires maintenance. "Aside from privacy issues, Internet connected devices are also a security worry. Many are stuffed with insecure software and require regular updates and password changes so they are not vulnerable to breaches." Even though tech can offer some advantages, there are still some caregiving tasks that require a human to perform (at least for now).

Here's an important point about the use of monitoring technology. "There is an imbalance of power that often exists between the elderly and their caretakers when it comes to technological know how. In the worst case scenario, it can also play a role in elder abuse, whether it is financial, physical or emotional, experts say." The elder needs to give consent to the use of the monitoring devices and understand that "[b]eing old does not mean you lose your rights."

Thanks to Professors Bauer and Cahn for sending me the link to the article.

Is Guardianship Replaceable?

The most recent issue of BIFOCAL (the publication of the ABA Commission on Law & Aging) contains an article by David Godfrey, Replacing Guardianship / Conservatorship.  He identifies three areas where folks may need help: "health care decisions, personal care decisions and financial management" and notes that the assistance provided often comes from "family and concerned friends."  Mr. Godfrey analyzes each area and discusses the options to provide support.

For health care decisions, he note family consent statutes will work, except "when the person has no identifiable family or friends willing to assist, when there is conflict between family members, or when the person making the choice appears to be committing abuse. It is possible for laws to be structured so that state actors can select someone to have legal authority to consent to health care under those
circumstances." (citations omitted).  For Personal Care Decisions,  "[these choices often have a low risk of harm...  and  choices  simply need to be made to keep the person happy, safe, and with appropriate nutrition. Where there are challenges in personal care decisions, support by family and friends will most often replace guardianship." Noting the increase in disputes regarding visitation, he references a trend where  folks "are increasingly being advised to leave specific written directions on contact or visitation in the event of a decline in capacity, to replace the use of guardianship to resolve concerns about contact or visitation."  He notes that living arrangements is a hybrid of personal and legal issues. ". Powers of attorney, authorized signers on financial accounts, and trusts are planning tools that can replace guardianship. When those options are not available, laws can be created to allow courts to issue limited protective orders, to approve leases, sales, or purchases of property, or
approve occupancy or admissions agreements, and are limited in scope to just that one issue, with oversight by the court and accountability to the court." 

Finally, for financial decisions,  he discusses various devices that empower another to make financial decisions for a person and oversight mechanisms such financial management professionals or giving family members access to view the person's account statements online.  He discusses protective arrangements and the risk of elder abuse and offers this conclusion:

Successful planning and legal alternatives can replace many guardianships. In many states, laws and practices need to be changed to allow more alternatives. All of these can fail. No one tool is a guarantee of safety. Criminals have used every tool in the box to abuse and exploit. Everyone needs to be urged to plan for incapacity; we are all only one health care event away from needing help meeting our basic needs and protecting ourselves from harm. Currently, we fail to plan more often than plans fail. Guardianship becomes the replacement for failure to plan, or for plans that have failed. It is time to turn that on its head and replace guardianship.

 

COVID and Elder Abuse

A  recently released article from the Fall 2021 publication of the National Association of Social Workers explores the impact that COVID had on the number of elder abuse cases. Elder Abuse & COVID-19 explains that "[t]he novel coronavirus (COVID-19) pandemic has had a profound and disproportionate impact on older adults, including apparent increases in elder abuse. This publication explores these effects and highlights resources developed by social workers and other service providers to support practice with older adults."  The article cites a study by Dr. Pamela Teaster and others (Dr. Teaster is a friend and ROCK STAR researcher) that showed that "81 percent of Adult Protective Services (APS) personnel related having received “fewer or many fewer” reports of adult maltreatment within the first six months of pandemic shutdown."  Citing a number of other studies, the author notes that COVID led to an increased risk of elder abuse.  The article discusses the impact of sheltering at home and a freeze on visitation in long-term care facilities as heightening the risk of elder abuse.

[T]he pandemic has provided fertile ground for multiple types of fraud and scams, many of which affect older adults. Common schemes include (a) COVID-19 testing, treatment, and vaccine scams; (b) imposter scams, in which an individual pretends to represent a relative, charitable organization, government agency, or other trusted source to steal money or financial information; (c) Economic Impact Payment (stimulus check) scams; (d) home and mortgage scams (to make improvements, prevent foreclosure, or modify loans; and (e) identity theft. The financial strains many older adults experience during the pandemic can increase the risk of experiencing fraud and scams.  (citations omitted). 

The article concludes by highlighting some of the actions of social workers to "prevent, identify, and respond to elder abuse."

Updated Visitation Guidance from CMS

Last week CMS issued revised guidance on SNF resident visitation.  Here is the summary

• CMS is committed to continuing to take critical steps to ensure America’s healthcare facilities are prepared to respond to the Coronavirus Disease 2019 (COVID-19) Public Health Emergency (PHE).
• Visitation Guidance: CMS is issuing new guidance for visitation in nursing homes during the COVID-19 PHE, including the impact of COVID-19 vaccination.
• Visitation is now allowed for all residents at all times.

I thought this paragraph important

We acknowledge that there are still concerns associated with visitation, such as visitation with an unvaccinated resident while the nursing home’s county COVID-19 level of community transmission is substantial or high. However, adherence to the core principles of COVID-19 infection prevention mitigates these concerns. Furthermore, we remind stakeholders that, per 42 CFR § 483.10(f)(2), the resident has the right to make choices about aspects of his or her life in the facility that are significant to the resident. We further note that residents may deny or withdraw consent for a visit at any time, per 42 CFR § 483.10(f)(4)(ii) and (iii). Therefore, if a visitor, resident, or their representative is aware of the risks associated with visitation, and the visit occurs in a manner that does not place other residents at risk (e.g., in the resident’s room), the resident must be allowed to receive visitors as he/she chooses.

Although CMS says visitation is now available, there are still limitations:

Although there is no limit on the number of visitors that a resident can have at one time, visits should be conducted in a manner that adheres to the core principles of COVID-19 infection prevention and does not increase risk to other residents. Facilities should ensure that physical distancing can still be maintained during peak times of visitation (e.g., lunch time, after business hours, etc.). Also, facilities should avoid large gatherings (e.g., parties, events) where large numbers of visitors are in the same space at the same time and physical distancing cannot be maintained.

The Great Resignation Doesn't Mean More on Social Security

A few weeks ago, the Washington Post ran this article, The latest twist in the ‘Great Resignation’: Retiring but delaying Social Security

For better-off Americans, the pandemic economy created some of the strongest incentives to retire in modern history, with generous federal stimulus, incredible market gains, skyrocketing home values and health concerns drawing many Americans into early retirement.

The surprising twist? Many of these retirees also opted to put off claiming Social Security benefits, an exclusive Washington Post analysis shows. By delaying their benefits, these retirees can expect to collect higher monthly checks in the future.

The data in the article show retirements up about 5% but Social Security Retirement apps down about the same for the same time period.  Do we know what is going on?

 

America’s retiree population grew by about 3 million during the pandemic, about double what would have been expected given pre-pandemic trends, which has been previously reported. But the surprising surge in older Americans delaying Social Security upon retirement is another example of a number of unusual trends roiling the American labor market. Most notably, workers of all ages are quitting jobs in record numbers, in what has been dubbed the “Great Resignation.”

But why is this happening? Perhaps it's the "generous federal stimulus and unemployment insurance payments that enabled retirees to make ends meet in the short term; soaring stock and home prices that fattened retirement accounts; and pandemic-related restrictions at Social Security field offices nationwide that forced seniors to apply online."  We know that the pandemic is a great risk to all of us, but older workers can be even more vulnerable.  Once we are out of the pandemic, it will be interesting to see if this trend continues or reverses.

Medicare Premiums Jump

Remember last month when SSA announced the 2022 COLA-maybe not groundbreaking, but a nice "raise" for beneficiaries.  Well, what SSA gave, Medicare takes away, with their announcement regarding the 2022 premium. Alzheimer's drug cited as Medicare premium jumps by $21.60  explains that 

Medicare's “Part B” outpatient premium will jump by $21.60 a month in 2022, one of the largest increases ever. Officials said Friday a new Alzheimer's drug is responsible for about half of that.

The increase guarantees that health care will gobble up a big chunk of the recently announced Social Security cost-of-living allowance, a boost that had worked out to $92 a month for the average retired worker, intended to help cover rising prices for gas and food that are pinching seniors.

The implications reach beyond the cost of the premiums for 2022. "The new Part B premium will be $170.10 a month for 2022, officials said. The jump of $21.60 is the biggest increase ever in dollar terms, although not percentage-wise. As recently as August, the Medicare Trustees’ report had projected a smaller increase of $10 from the current $148.50."

Many thanks to my dear friend, Professor Feeley, for sending me the link to the article.

Here's one thought about it. "The increase in the Part B premium for 2022 is continued evidence that rising drug costs threaten the affordability and sustainability of the Medicare program," said Medicare chief Chiquita Brooks-LaSure in a statement. Officials said the other half of the premium increase is due to the natural growth of the program and adjustments made by Congress last year as the coronavirus pandemic hit."

California Aid-in-Dying Litigation Ended

Yesterday, I pointed out to you an article about how state residency requirements limit those from accessing aid in dying.  Today, I wanted to update you on litigation that had been filed some time ago against the California aid-in-dying statute.  The AP ran a story noting the Lawsuit briefly blocking California assisted death law ends.

An appeals court ... formally ended a lawsuit that in 2018 temporarily suspended a California law that allows adults to obtain prescriptions for life-ending drugs, a gap that advocates blamed Thursday for a significant drop in its use that year.

California lawmakers made the lawsuit moot last month when they reauthorized and extended the law until 2031 while reducing the time until terminal patients projected to have six months or less to live can choose to be given fatal drugs.

The controversy started when "a ... judge... [ruled]in May 2018 that state legislators acted unconstitutionally when they passed the law during a special session that was devoted to health care in 2016."

A different ... judge last year ruled that lawmakers in fact did act properly and that physicians who sued to block it lacked legal standing to file the challenge. But the court allowed the opponents to refile their complaint if they could find patients to join the lawsuit.

Late last week the two sides agreed that the Legislature’s recent reauthorization and extension of the law, which had been set to sunset in another five years, effectively ended the legal challenge. 

The law was also revised as part of the reauthorization, including shortening "the waiting period required between the time a patient makes separate oral requests for medication ...to 48 hours, down from the current minimum 15 days [as well as] eliminat[ing] the requirement that patients make final written attestations within 48 hours of taking the medication."

Aid-in-Dying and the Frustration of a State Border.

The New York Times recently ran this article, For Terminal Patients, the Barrier to Aid in Dying Can Be a State Line.

The article focuses on a doctor in Oregon who sees patients from Washington seeking assistance in dying, which the doctor is unable to provide because of the residency requirement in the statute.  Why are patients from Washington, which has its own aid-in-dying law, seeking the help of a doctor in Oregon? Because, the article notes, "the southwestern region has few providers who can help patients use it."  The doctor in Oregon has filed suit, "claiming that the residency requirement for Oregon’s aid-in-dying law is unconstitutional."  There are also states with legislative efforts to resolve this limitation in the statutes.

New Mexico, the most recent state to enact an aid-in-dying statute, has taken a bit broader approach. "The largely rural state is the first to allow not only doctors but advanced practice registered nurses and physician assistants to help determine eligibility and write prescriptions for lethal medication. “In some communities, they’re the only providers,” said Representative Deborah Armstrong, a Democrat and the bill’s primary sponsor."  Last month, California's governor signed into law changes to that state's statute. "[S]tarting in January ... the 15-day wait between verbal requests[is reduced] to 48 hours and eliminates the requirement for a third written “attestation.”  These changes don't address the residency issue, so we will have to wait for the outcome of the litigation, unless the state legislatures decided to address it. 

As one expert quoted in the article noted, "[t]his is the only medical procedure we can think of that is limited by someone’s ZIP code...."

 

Equity for Older Adults Webinar

The National Center on Law & Elder Rights has announced a new webinar, Advancing Equity for Older Adults, Part 2: Putting Strategies into Practice, scheduled for Wednesday December 1, 2021 at 2 eastern.

This is a follow up to the first webinar, Advancing Equity for Older Adults, Part 1: An Introduction to Advancing Equity in Legal and Aging Services, presented on October 28th. It is not necessary to have attended the first training, but attendees are encouraged to watch the recording for an introduction to equity and racial justice for older adults. This webinar will apply principles and strategies to effectively advance equity in legal and aging services. Presenters from legal assistance and elder rights programs will describe the steps they have taken to center equity, with a focus on race equity, in their work, as well as lessons learned and promising practices for staffing, process, and evaluation. Attendees will receive actionable steps they can take and will learn about tools that advocates can incorporate in their own work to advance equity for older adults and serve those with the greatest social and economic need. Panelists will share their experience and will be available to answer questions from the audience.

To register for this webinar, click here.

Part 1 of the training is available here.

Age Bias by Health Care Professionals: Part 2.

Following the Kaiser Health News article (also in the Wall Street Journal), ‘They Treat Me Like I’m Old and Stupid’: Seniors Decry Health Providers’ Age Bias, Kaiser followed up with a webinar, Confronting Ageism in Health Care: A Conversation for Patients, Caregivers and Clinicians.

Ageism is not new, but the covid pandemic brought it shockingly into view. In its early days, the virus was shrugged off as something of concern mostly to older people, with some arguing they were expendable if the alternative was shutting down the economy. In the grave months that followed, many who died in nursing care were dehumanized in news reports that showed body bags piled outside facilities. To date, about 80% of those who have died of covid-19 have been older adults, including nearly 140,000 nursing home residents — a population beset by understaffing, inadequate infection control and neglect.

The panel included four doctors and an attorney who is the executive director of the Maine Council on Aging (it has an anti-ageism pledge.)  The video can be viewed here.

Is There Really A Generational Divide?

Professor Kaplan sent me a link to a very interesting essay published in the Wall Street Journal. The Bunk of Generational Talk  dismisses the stereotypes of the various generations and points out that society's discussions should be about the real issues the generations face.

[S]uch stereotypes, myths and contrived conflicts can be genuinely destructive when they stand in the way of a real understanding of generational differences, which shape our attitudes and behaviors on many key issues: religion, sexual activity, smoking, drinking alcohol, connection to political parties and trust in other people.

Our wrongheaded thinking about generations leads us to focus on the wrong problems. Headlines about spendthrift young people, for example, distract us from the huge shift in economic policy in recent decades toward the interests of older people. We avoid facing up to a challenge like climate change by laying the blame on older generations while placing our expectations for salvation on the coming generation. Across a range of issues, manufacturing fake generational battles denies us the benefits of intergenerational connection and solidarity.

The article destroys the generational myths and stereotypes on some of the major issues facing us today as well as the reasons for the popularity of such myths.  This is an excellent article and I plan to assign it to my students.

Ageism by Health Care Providers?

A couple of weeks ago, CNN ran this article, Seniors decry age bias, say they feel devalued when interacting with health care providers.

In health care settings, ageism can be explicit. An example: plans for rationing medical care ("crisis standards of care") that specify treating younger adults before older adults. Embedded in these standards, now being implemented by hospitals in Idaho and parts of Alaska and Montana, is a value judgment: Young peoples' lives are worth more because they presumably have more years left to live.

Justice in Aging, a legal advocacy group, filed a civil rights complaint with the U.S. Department of Health and Human Services in September, charging that Idaho's crisis standards of care are ageist and asking for an investigation.

Implicit bias is also an issue.

In other instances, ageism is implicit. Dr. Julie Silverstein, president of the Atlantic division of Oak Street Health, gives an example of that: doctors assuming older patients who talk slowly are cognitively compromised and unable to relate their medical concerns. If that happens, a physician may fail to involve a patient in medical decision-making, potentially compromising care, Silverstein said. Oak Street Health operates more than 100 primary care centers for low-income seniors in 18 states.

The article features several experiences of patients and then notes that "[n]early 20% of Americans ages 50 and older say they have experienced discrimination in health care settings, according to a 2015 report, and it can result in inappropriate or inadequate care. One study estimates that the annual health cost of ageism in America, including over- and undertreatment of common medical conditions, totals $63 billion."

 

This is an important article to read. Thanks to my friend Professor Kaplan, for ending me the link to the story.

 

New Elder Justice Policy Highlights

The National Center on Elder Abuse (NCEA) along with Ageless Alliance has released a new policy highlights, running from September 2020 through February 2021. Here's the info about this report "The elder justice legislation found in this document was elicited and finalized from the National
Center on Elder Abuse (NCEA) Listserv and independent websites in February 2021. The
compilation is intended to reflect highlights across the nation and does not include all legislation
related to elder justice. However, updates will be sent biannually and states are encouraged to
send updates on significant legislative action to Ageless Alliance. This document reflects activity
in 15 states and highlights at the federal level." The report includes enacted legislation and proposed legislation.

New Reports on SNF Oversight

The Long Term Care Community Coalition has released new reports: A Guide to Nursing Home Oversight and Enforcement,  and Broken Promises: An Assessment of Federal Data on Nursing Home Oversight. The first report "identifies key requirements for state agencies in the federal regulatory requirements and the State Operations Manual which lays out detailed expectations and guidance for state surveyors." It is available here for download.  The second "presents the results of an analysis of survey and enforcement data at the state, regional, and federal levels with a focus on all U.S. states and the 10 Regional Offices of the federal Centers for Medicare and Medicaid Services (CMS) tasked with overseeing the performance of the state enforcement agencies in their respective regions of the country" and is available here.