Elder Law Prof Blog

Colorado Aid-In-Dying Cases Update

Earlier this week I blogged about a recent development with the Oregon statute.  In a recent story in the Colorado newspaper, it's reported that there has been an uptick in requests for aid-in-dying in Colorado. Number of patients who sought medication to end their lives under Colorado’s aid-in-dying law on the rise offers this information:

Last year, 222 people obtained prescriptions for the lethal doses of medication, which they must ingest themselves after getting approval from two physicians who certify that they have a terminal illness and fewer than six months to live. That brings to 777 the five-year total prescriptions since the End-of-Life Options Act was passed, according to a recently completed report on the law by the Colorado Department of Public Health and Environment.  The department tracked how many of those 777 prescriptions were dispensed — 583 — but is not required to follow up with patients’ families or doctors to find how many of those patients actually took the medication.

More data is available in the article, as well as the report from the Colorado Department of Public Health and Environment. The article also discusses a study from a researcher at the University of Colorado School of Medicine. 

The Fading Possibility of Aging At Home

We have blogged several times in the past about the desire of folks to age in place, and separately, the declining availability of home care workers.  Those two issues have now merged in a recent guest essay in the New York Times,  Many of Us Want to Age at Home. But That Option Is Fading Fast. "By 2040, the population of American adults aged 65 and older will nearly double, and that of adults aged 85 and older is expected to quadruple over the same period. As our aging population grows, the need for home care is increasing. Yet in New York, as in much of the rest of the country, there are too few workers."  The article looks at various reasons for the lack of home care workers, various reports on the issue, and proposed legislative solutions.  The essay concludes with this reminder: "[w]hether we are growing older, recovering from surgery or living with a disability and need help with things like making meals, transportation to and from appointments and running errands, most Americans will need home care at some point. Let’s make sure when the time comes, the work force is ready."

Thanks to my friend and colleague, Professor Mark Bauer, for sending me the link to this essay.

Victoria Law Foundation Hosts International Access to Justice and Legal Services Forum in Australia March 30 through April 1

I had the unique privilege of joining an interdisciplinary team of professionals discussing timely concerns about access to justice for older persons, not only in the host country of Australia but around the world.  Our session, entitled Legal Need, Empowerment and Older People, began with Susannah Sage Jacobson and Eileen Webb, academics from the University of South Australia, who addressed ageism and specific examples of abuse, followed by Frances Batchelor, Acting Director of the Australian National Ageing Research Institute, discussing new consumer-based research on quality of residential care.  The International Access to Justice Online Forum is hosted by the Victoria Law Foundation and the UCI Law Civil Justice Research Initiative, with panelists across the three days of programming from Australia, the U.S, Canada, New Zealand and the U.K.  There is still time -- depending on which side of the international date line you reside -- to catch more presentations as the event runs through April 1, 2022.

In addition, research papers and reports and video captures of the program are being posted online.  Take a good look!  

Increase in Multi-Generational Housing

Pew Research Center recently released a report on multi-generational housing. In Financial Issues Top the List of Reasons U.S. Adults Live in Multigenerational Homes   consider this key finding:

A third of U.S. adults in multigenerational households say caregiving is a major reason for their living arrangement, including 25% who cite adult caregiving and 12% who cite child care. Among the other reasons given for living in a multigenerational household, 28% say it’s the arrangement they’ve always had, while smaller shares cite a change in relationship status (15%), or companionship (12%) as a major reason why they live with family members. About one-in-eight adults (13%) say the coronavirus pandemic is a factor in why they live with multiple generations under one roof.

Breaking it down by age, the report notes that

[A]mong the oldest Americans – ages 65 and up – 20% of women live in multigenerational households, compared with 15% of men. Older Americans are less likely to live alone than they were several decades ago, a change linked to the growing share of older women who live with their spouse or children. 

By broad age group, Americans ages 25 to 39 and those ages 55 to 64 are about equally likely to live in multigenerational family households (each 22%). But within the younger group, those ages 25 to 29 (31%) are far more likely to live with multiple generations under one roof than those ages 30 to 34 (19%) or 35 to 39 (15%). 

The full report is available here.

Challenge to Residency Requirement in Oregon Medical Aid-in-Dying Statute

The Associated Press reported that Oregon ends residency rule for medically assisted suicide.  A lawsuit challenging the residency requirement had been filed and as a result of a settlement, "Oregon will no longer require people to be residents of the state to use its law allowing terminally ill people to receive lethal medication, after a lawsuit challenged the requirement as unconstitutional. ...  [T]he Oregon Health Authority and the Oregon Medical Board agreed to stop enforcing the residency requirement and to ask the Legislature to remove it from the law."  The suit addresses an issue faced by doctors who "had been unable to write terminal prescriptions for patients who live just across the Columbia River in Washington state. [Even though] Washington has such a law, providers can be difficult to find in the southwestern part of the state, where many hospital beds are in religiously affiliated health care facilities that prohibit it."  The article indicates that advocates intend to challenge the residency requirement in other states with aid-in-dying laws.    Stay tuned.

You Don't Have to be a Parrot Head to Retire to Margaritaville

As the New Yorker explains in Retirement the Margaritaville Way, this active adult community was a logical step, "[g]iven the age of Buffett’s fan base, and the life style he’s hawking—as well as baby-boomer demographics... . The development in Daytona [Beach, Florida} was a joint project of Margaritaville Holdings and Minto Communities USA, the American branch of a builder based in Ottawa. In 2017, Minto had bought roughly two thousand acres of brush and swamp, about seven miles from the coast... [with] a plan to develop a retirement community there called Oasis. [which then] became Latitude Margaritaville, taking its name from Buffett’s breakthrough 1977 album...."  The article describes a number of features of the community and interviews with various residents.   And although you don't have to be a parrot head to retire to Margaritaville, you might have more fun if you are. 

You Don't Have to be a Parrot Head to Retire to Margaritaville

As the New Yorker explains in Retirement the Margaritaville Way, this active adult community was a logical step, "[g]iven the age of Buffett’s fan base, and the life style he’s hawking—as well as baby-boomer demographics... . The development in Daytona [Beach, Florida} was a joint project of Margaritaville Holdings and Minto Communities USA, the American branch of a builder based in Ottawa. In 2017, Minto had bought roughly two thousand acres of brush and swamp, about seven miles from the coast... [with] a plan to develop a retirement community there called Oasis. [which then] became Latitude Margaritaville, taking its name from Buffett’s breakthrough 1977 album...."  The article describes a number of features of the community and interviews with various residents.   And although you don't have to be a parrot head to retire to Margaritaville, you might have more fun if you are. 

DOJ Found Colorado Violated the ADA

On March 3, 2022, DOJ announced "that Colorado unnecessarily segregates people with physical disabilities in nursing facilities, in violation of the Americans with Disabilities Act (ADA) and the Supreme Court’s decision in Olmstead v. L.C. The department’s findings, detailed in a letter to Colorado Governor Jared Polis, follow a thorough and multi-year investigation into the state’s system of care for people with physical disabilities." 

"We have concluded that the State is failing to serve individuals with physical disabilities in the most integrated setting appropriate to their needs. Unnecessary institutionalization is common in Colorado despite several programs to help adults with physical disabilities remain in, or transition back to, their own homes and communities." The press release containing the announcement is available here. The letter to the Colorado Governor is available here. 

No More Emergency, No More Medicaid?

Elder Law Attorney and frequent blog reader Morris Klein (thank you Morris) sent me the link to a recent article in the Washington Post, Millions of vulnerable Americans likely to fall off Medicaid once the federal public health emergency ends.

As many as 16 million low-income Americans, including millions of children, are destined to fall off Medicaid when the nation’s public health emergency ends, as states face a herculean mission to sort out who no longer belongs on rolls that have swollen to record levels during the pandemic.

The looming disruptionis a little-noticed side effect of the coronavirus crisis, and it is stoking fears among some on Medicaid and their advocates that vulnerable people who survived the pandemic will risk suddenly living without health coverage. For the Biden administration — which will make the decision on when to lift the health emergency — there is the potential political stain of presiding over a surge of poor, newly uninsured Americans, depending on how things go once states resume checking which Medicaid beneficiaries still qualify.

The full article is available here.

New Nursing Home Regs Coming From Feds Within Year?

During the President's State of the Union Address, one of his initiative's is reforming of SNFs. So a flurry of articles have been published recently. Here are some highlights for you. 

Biden Pledges Better Nursing Home Care, but He Likely Won’t Fast-Track It (discussing lack of use of interim final rules). The article reports that we should expect CMS to study the issue, especially minimum staffing standards, before acting. 

Biden’s Promise of Better Nursing Home Care Will Require Many More Workers.   Regarding proposed regulations, "[t]he centerpiece of the effort is establishing minimum staffing levels for facilities. To date, the Centers for Medicare & Medicaid Services requires “adequate” staffing but specifically mandates only a skeleton crew of round-the-clock nursing coverage and one registered nurse who works at least eight hours each day."

CMS eyes 'full-court sprint' to nursing home staffing minimums rule  (new rules expected within year) (subscription required to read the story).

The reforms just aren't limited to increasing staffing standards. Read the fact sheet from the White House, available here.

Aging in Place Village Model Has Its Limitations

According to a recent article in Kaiser Health News, Despite Seniors’ Strong Desire to Age in Place, the Village Model Remains a Boutique Option, "[t]wenty years ago, a group of pioneering older adults in Boston created an innovative organization for people committed to aging in place: Beacon Hill Village, an all-in-one social club, volunteer collective, activity center, peer-to-peer support group, and network for various services.  Its message of “we want to age our way in our homes and our community” was groundbreaking at the time and commanded widespread attention. Villages would mobilize neighbors to serve neighbors, anchor older adults in their communities, and become an essential part of the infrastructure for aging in place in America, experts predicted."  Fast forward to now. where even though "there are 268 such villages with more than 40,000 members in the U.S., and an additional 70 are in development ... those numbers are a drop in the bucket given the needs of the nation’s 54 million older adults. And villages remain a boutique, not a mass-market, option for aging in place."

What exactly is a "Village" you ask? The article explains the concept: "[they] share common features, although each is unique. Despite their name, physical structures are not part of villages. Instead, they’re membership organizations created by and for older adults whose purpose is to help people live independently while staying in their own homes. Typically, villages help arrange services for members: a handyman to fix a broken faucet, a drive to and from a doctor’s appointment, someone to clean up the yard or shovel the snow. Volunteers do most of the work." They also offer educational and social events and facilitate introductions to other residents of the village.   

The question posed by the article is whether this concept can have widespread acceptance and adoption with various socio-economic groups, especially given their costs. The article discusses some options pursued by existing villages, in addition to discussing the hurdles.

 

Reconsidering the Implications of Togetherness As Couples Get Older

I have a fondness for California Rock & Roll from a certain era -- also known as my youth.  One of my favorites, Warren Zevon, is probably mostly remembered as a singer/songwriter, and he penned some great songs such as Hasten Down the Wind (performed by another favorite, Linda Ronstadt, who, like me was born next door to California in Arizona).  Some of his lyrics work equally well as poetry.  Right now I'm thinking to the opening lines to Reconsider Me, recorded and released by Zevon in 1987:   

If you're all alone

And you need someone

Call me up

And I'll come running

Reconsider me

Reconsider me

Those lines seem to echo in an article from the New York Times today, describing a trend among older singles -- they are willing to love again, but at least one half of the couple isn't willing to live together.  The article begins by describing a 78 year-old widow's friendship with a a widowed man that was turning romantic.   He wanted them to move into together.  She wasn't eager and she admits that his health woes were part of the concern.  She is quoted as saying "He was not in great shape."  Eventually, when he had surgery and needed recuperative care, she followed his directions and "using his funds, hired a live-in caregiver for him."  Once he recovered, they spent more time together.  

The NYT writer, Francine Russo, observes:

With greater longevity, the doubling of the divorce rate since the 1990s for people over 50 and evolving social norms, older people like Ms. Randall are increasingly re-partnering in various forms.  Cohabitation, for example, is more often replacing remarriage following divorce or widowhood, said Susan L. Brown, a sociologist at Bowling Green State University in Ohio.

 

These older adults are seeking (and finding) love, emotional support and an antidote to loneliness.  But many older women, in particular, fear that a romantic attachment in later life will shortly lead to full-time caregiving.

The New York Times article also echoes topics addressed in the article I linked to last week by Cahn, Huntingdon and Scott, Family Law for the One-Hundred Year Life.  For more from the Times, if you have a subscription, see Older Singles Have Found a New Wat to Partner Up:  Living Apart.