Elder Law Prof Blog

Cognitive Aging, Maturity and Guns

Yesterday I wrote a blog post about gun use that several of my friends correctly characterized as heartfelt.  Of course, legal research is merited, and I find that my view echoes what is written in a key section of a very recent opinion:

Beyond these significant safety concerns, contemporary scientific research increasingly sheds light on the relative immaturity and incomplete cognitive development of young adults. California cites to evidence that young adults are less mature than older adults, which leads them to take more risks and behave more reactively than their elders. Young adults are thus quicker to anger than older adults and more vulnerable to intense mood swings and to making instinctive, rather than considered, decisions. This cognitive immaturity makes young adults more likely to use firearms in situations of significant emotional arousal or perceived threat, or other situations that require rapid, complex information processing. Other Circuits have credited similar evidence to uphold regulations on firearms affecting 18 to 20-year-olds. NRA, 700 F.3d at 208; Horsley v. Trame, 808 F.3d. 1126, 1133 (7th Cir. 2015). The semiautomatic rifle regulation helps to “ensure that access to these weapons is restricted to mature individuals who have successfully completed safety training,” such as members of law enforcement and the military, “furthering the public safety objectives and ensuring that the Founding Era balancing of Second Amendment rights with safety concerns continues today.” Jones, 498 F. Supp. 3d at 1328.

Unfortunately, this is from the dissenting opinion in Jones v. Bonta, decided by the 9th Circuit with an opinion issued less than two weeks before the shooting in Uvalde, Texas.  Sigh.  

Or, as the always astute Professor Naomi Cahn observes, "The irony of the timing of such a ruling is beyond distressing." 

When It Comes to Guns, Age Matters

I suspect I'm not alone in thinking about guns this morning in the wake of the Texas shooting at a grade school in Uvalde Texas.  This post reflects matters I've been thinking about for a long time.  Indeed, thirty years ago I considered making gun violence a core academic research topic, until I realized how potent is the lobby supporting gun sales, and therefore gun ownership.

First, this morning I listened to a young man, David Hogg, speaking to an NPR interviewer about his own frustrations in opposing gun violence.  He urged legislators at state and national levels to do at least "one thing" to move forward on gun safety legislation.  My first reaction was "one thing?"  How is that going to help?  

Second, I heard a bit more about the background of the 18 year old shooter in Texas, as well as the background of the similarly-aged shooter in Buffalo New York.   More memories.  In one of my previous lives, I volunteered for a neighborhood tutoring program in New Mexico.  My first two students, in high school, had been sent to the program by judges trying to help youths in crime-related incidents.  One young man attended once -- and then disappeared.

I managed to have a good session with the other student, a junior in high school, who at my request wrote a short essay about what he saw as his future.  The 500 word piece was quite well written, and gave us something we could definitely use to gently work to improve his reading and writing skills.  The focus, however, proved to be a window into the bleak outlook of a young man who was involved in a so-called gang.  To put it simply, he saw no future for himself after high school.  He said with utter confidence that his high school "had" to graduate him regardless of whether he did any more work, as long as he merely attended class.  I didn't want to believe that, but he had plenty of evidence to support his hypothesis. He didn't have any post graduation plans.  He had equal confidence that he probably wasn't going to make it to age 21.  The following week during our tutoring session, he was creative in his resistance to my role as a tutor.  He turned in his next essay, but it was written entirely in what was some sort of "tagger's script," the stylized script he used when spray-painting his messages on public building.  Tagging was his only crime at that moment.  

I eventually decided to volunteer for younger students, and in fact I had a two-year working student-tutor relationship with a grade school boy who was in the program at his mother's insistence.  Actually, I got to know the whole family, including his parents and a sister who also sometimes attended our reading sessions (and she helped turn reading into a competitive adventure).  To mark the success of his "graduation" from the program, we went to a Phoenix Suns basketball game, because the opposing team that day had a player much admired by my student.  At his comparatively "youthful" age, he had written about his plans for the future, including somehow, against all genetic odds, planning to "grow" tall enough to be a professional basketball player, like his idol, Nate Archibald.  We talked about coaching as an alternative -- just in case.

I remember the difference in these individuals as I listen to the troubled histories of the two "boys" who bought guns as part of their 18th birthday celebrations.  I don't know what happened to most of the other the students involved in the tutoring program.  The second student dropped out of the program for reasons I never learned, but I later saw his name in the newspaper when he was accused of being the driver in a car-jacking where his "friend" shot the woman who resisted having her car taken.  Sadly, that student's essay was prophetic, as any true dreams for a future may have ended with that crime.

So, if we are going to do at least "one thing," could we -- should we -- focus on raising the threshold age for gun ownership?  Should we give young people in their late teens more  time to grow older (and "taller" or more mature) and thus to reach a point where the future seems brighter?  I'm not suggesting they cannot participate in shooting sports, hunting, and the military, where we hope their use and skill building would be supervised by knowledgeable people. I am suggesting making it unlawful for them to "own" or at least to purchase guns until they are older. Research suggests that substantially more crimes of gun violence against others are committed by individuals between the ages of 17 and 21.  There is research to support restricting gun ownership (and therefore gun sales) to individuals over 21 as one step forward in terms of safety. 

For example, in June 1999, a "collaborative report" under the auspices of the U.S. Department of Justice noted in part:

In 1996, 26,040 people in the United States were killed with guns.  In 1997, offenders age 18, 19, and 20 ranked first, second, and third in the number of gun homicides committed.  Of all gun homicides where an offender was identified, 24 percent were committed by this age group, which is consistent with the historical pattern of gun homicides over the past 10 years.  

Other statistics suggest that gun-related suicide death rates are highest for females age 45 to 64 and for males age 75 and older, statistics that point to another form of age-specific gun tragedies. Age matters.

That first boy who "disappeared" after the first tutoring session?  I later learned he had been killed in a neighborhood shooting.  Would younger adults support delayed lawful-ownership as one form of protection against gun violence?   Certainly, more is needed on so many other levels including mental health supports. But could "one thing" -- at least -- include blocking gun sales to people who are still in the process of learning to plan for the future, for their futures?  

 

Researcher Explains: Misuse of Data Can Lead to "Pariah-Tizing" the Elderly While Failing to Provide Key Information for All Ages

In September 2021, I listened to a great set of speakers at the Aging, Health, Equity and the Law Conference hosted by Touro College in New York.  One session in particular captured my attention.  Barbara Pfeffer Billauer, JD, MA (Occ. Health), PhD, who is currently Professor of Law and Bioethics at the University of Porto and Research Professor at the Institute of World Politics in Washington DC. spoke about the misuse of statistics regarding COVID-19 on an international scale.  We exchanged emails, and it was clear she was deep into the emerging data from countries around the world.

Dr. Billauer's most recent analysis has received its first publication on May 19, 2022 by the American Council on Science and Health at ACSH.org, with the appropriate yet provocative title of Pariah-Tizing the Elderly: Another Casualty of COVID.

Here she takes on recent news media coverage, including the Washington Post, as well as some scientific community publications, to raise the significant concern that exaggerating the risk of COVID-19 stigmatizes one group -- here the elderly -- while failing to fully inform all age groups about the efficacy of vaccination.  She opens with this explanation:

I call a mistaken, targeted focus and overemphasis on any population group “pariahtization.” As recent evidence demonstrates, this "pariah-tized” focus on the elderly regarding COVID-19 is certainly misplaced. It also has resulted in untoward policies that caused more deaths in both the younger segments of the population. . . .  

 

Contrary to popular opinion . . . COVID is not a disease of the elderly—like dementia, or cataracts, or osteoarthritis. Indeed, older people are less likely to die of COVID than heart disease or cancer. This is not so for the younger cohort, for whom during several months last year COVID was the leading cause of death.

 

For six months of 2021—half the year, COVID was the leading cause of death in those 45-54. In three months of the year, COVID was the leading cause of deaths forages 55-64, but only in two months was it the leading cause of death for those 65-74, the same as for those 35-44; and only in one month was COVID the leading cause of death for those over 75. . . .

 

The misplaced focus [of the media] on the aged being especially vulnerable has led younger people to unwisely eschew vaccination on the grounds that the disease is not generous to them.

Dr. Billhauer clearly has a way with words and she makes effective use of data and charts to explain important data concerns.  The implications of her findings go beyond the problem of the current crisis.  

Supporting Law Students Looking for Jobs During the Summer

I get a lot of fun calls, both from attorneys and from law students, looking for the right employment match in "elder law."   For lawyers who are looking for "new attorneys" to help staff their growing law practices, the calls sometimes come just after the law school year is over in early May, when the students have already scattered to the winds or to their homes to study for July Bar Exams.  Law Schools' Career Services offices welcome these calls year-round, but we can often be of more help to both sides of the employment equation when people reach out early in the spring or fall semesters.  

Nonetheless, one of my favorite "secret" ways for students and attorneys to find each other is through Bar Association programming and Continuing Legal Ed programs.  While students usually roll their eyes when, for example, I suggest attending an "educational" program such as Pennsylvania's Elder Law Institute (July 21-22, 2022), most of the students who do attend soon realize that these offer multiple opportunities to get to knew great practitioners and to network.  I often "sponsor" my own summer research assistants to attend at least one full day of programming, especially if there is a meet-and-greet lunch or reception at the end of the day.  Elder Law attorneys are just plain friendly.  This is a win-win for students and prospective employers.

But even beyond elder law, I also recommend that law students reach out during the summers to potential "employers" via State and County Bar organizations in the area of the country where they hope to practice.  For example, I recently noticed that in Arizona, the Maricopa County (Phoenix area) Bar Association is hosting a 2022 Diversity Summer Social on June 9, 2022 expressly for "interns, externs, summer and first year associates."  I'm sure that "prospective" interns, externs, summer and first-year associates would also be welcome to "mingle with other summer associates, local judges and bar leaders." 

I know that one of Pennsylvania's very respected "young" Elder Law attorneys is someone I first got to know as a student because we were both attending a State Bar Association meeting while he was "just" a first year law student.  That's the kind of smart networking that can take people very far.  

Pandemic Retirees Unretiring?

The Washington Post recently published Millions retired early during the pandemic. Many are now returning to work, new data shows. Although a significant number of folks retired early, 

An estimated 1.5 million retirees have reentered the U.S. labor market over the past year, according to an analysis of Labor Department data by ... an economist.... That means the economy has made up most of the extra losses of retirees since February 2020, a Washington Post analysis shows.

Many retirees are being pulled back to jobs by a combination of diminishing covid concerns and more flexible work arrangements at a time when employers are desperate for workers. In some cases, workers say rising costs — and the inability to keep up while on a fixed income — are factoring heavily into their decisions as well.

But those reentering the work force are not just those who retired during the pandemic. 

The percentage of retirees returning to work has picked up momentum in recent months, hitting a pandemic high of 3.2 percent in March, according to Indeed. In interviews with nearly a dozen workers who recently “un-retired," many said they felt comfortable returning to work now that they’ve gotten the coronavirus vaccine and booster shots. Almost all said they’d taken on jobs that were more accommodating of their needs, whether that meant being able to work remotely, travel less or set their own hours.

The article provides a number of interesting examples of individuals who are "unretiring" and why they chose to do so.

HHS Inspector General Report on MA Plans

The Inspector General of HHS recently released this report,  Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns About Beneficiary Access to Medically Necessary Care.

Here's the OIG explanation why they did the study:

A central concern about the capitated payment model used in Medicare Advantage is the potential incentive for Medicare Advantage Organizations (MAOs) to deny beneficiary access to services and deny payments to providers in an attempt to increase profits. Although MAOs approve the vast majority of requests for services and payment, they issue millions of denials each year, and CMS annual audits of MAOs have highlighted widespread and persistent problems related to inappropriate denials of services and payment. As Medicare Advantage enrollment continues to grow, MAOs play an increasingly critical role in ensuring that Medicare beneficiaries have access to medically necessary covered services and that providers are reimbursed appropriately.

What the OIG found shows that "MAOs sometimes delayed or denied Medicare Advantage beneficiaries' access to services, even though the requests met Medicare coverage rules. MAOs also denied payments to providers for some services that met both Medicare coverage rules and MAO billing rules." They also found that 13% of denied prior authorizations met the coverage rules and that additionally some denials were made based on lack of documentation but OIG found sufficient documentation had been provided. 18% of payment request denials met the Medicare coverage rules.

Here are their recommendations

Our findings about the causes and circumstances under which MAOs denied prior authorization or payment for requests that met Medicare coverage and MAO billing rules provide an opportunity for improvement to ensure that Medicare Advantage beneficiaries have timely access to all necessary health care services, and that providers are paid appropriately. Therefore, we recommend that CMS:

• issue new guidance on the appropriate use of MAO clinical criteria in medical necessity reviews;

• update its audit protocols to address the issues identified in this report, such as MAO use of clinical criteria and/or examining particular service types; and

• direct MAOs to take additional steps to identify and address vulnerabilities that can lead to manual review errors and system errors.

The full report is available here.

Residents Are Asking a Lot of Questions -- Tough Questions -- about CCRCs

It is Sunday, and I'm looking at a long list of things to do next week, with grading exams at the top of my list.  Significantly, however, in the last six to eight months, at increasing rates, I'm hearing from current and prospective residents of Continuing Care Retirement Communities (CCRCs, also sometimes called Life Plan Communities).  Here are examples of some of the most often asked questions:

• "The company that runs my CCRC is about to engage in development of a new CCRC.  Is the money I've already paid in the form of an admission fee, or the money I continue to pay as monthly service fees, going to support this new development?"
• "During the lock-down associated with protecting residents and the public from COVID-19, we were asked to give up services that were the very reason we choose this community.  But now that we are no longer locked down, the services either are not returning or the fees we are charged are actually increasing.  Is there some effective way to object to this disconnect between the promises and the delivery of services?"
• "My parents are thinking about moving into a CCRC.  On the one hand, I like the idea of the active community they are choosing.  But on the other hand, the amount they are expected to pay in the form of an admission fee is astounding.  Why are some communities calling this a refundable fee and others are saying it isn't a refundable fee? What are the protections for the 'refundable' fee?"
• "We have just learned that our nonprofit CCRC is being transferred to a for-profit company as the owner-operator.  How is this likely to impact my wife and I as residents?"

Answers to many of these questions depend on the state's laws governing this form of senior living operation and, even more, on the particular contracts between the resident and the provider.  State regulators have concerns here too.  For those looking for legal assistance in their particular community, I sometimes recommend looking for attorneys in the caller's home state, someone who understands CCRCs from a resident perspective. I first wrote about the need for attorneys who understand resident perspectives in 2006.  

Sometimes "elder law" attorneys have this expertise, but not always.  Plus, it can be important to consult with an attorney who understands consumer protection laws, and not "just" CCRC law.  Finally, if litigation is actually on the horizon, the choice for legal advice can depend on whether the attorneys have expertise in litigation or dispute resolution and not "just" contract law. 

So, all of this is a short way of saying that even though, as an legal academic,  I often write about the importance of resident rights in CCRCs, and even though I believe the future of CCRCs is very much tied to the answers, I'm not in a position to respond to individual questions. The very fact that I'm writing this Blog Post is a potential indication that something important could be going on in the industry.  Perhaps that "something" should be addressed by the industry itself, especially if it wants the CCRC concept not just to survive, but thrive.  In my opinion, it is not enough for the industry to say that "every CCRC is different."  

RFP: Washington State Seeks Expert Consultation to Develop CCRC Regulations with Heightened Consumer Protections

I'm always interested when I start getting lots of calls or emails about a certain topic in aging.  Today I was hearing from a lot of people wanting to talk about Continuing Care Retirement Communities (CCRCs, sometimes also called Life Plan Communities or LPCs). It is safe to say that all forms of senior living operations are facing new challenges after being hit hard by the lockdowns and staffing problems of the last two years with COVID-19.

But one of the most interesting set of calls was from the State of Washington, where residents have been using their time together during COVID to think carefully about the need for certain key protections for consumers who put their money and trust into CCRCs.  The Washington Continuing Care Residents Association (WACCRA) has worked carefully, calmly and diligently to reach the ears of legislators and regulators in the state.  I had the pleasure of hearing from  members and residents of CCRCs in Washington last October and speaking at their annual meeting. 

Today, I heard that the  Office of Insurance Commissioner in Washington has initiated a Request for Proposals for a time-sensitive research project:

This project is designed to assess federal and state authorities regulating continuing care retirement communities (CCRCs) and provide a report with recommendations on creating a legal framework for shared regulatory oversight of CCRC products under Chapter 18.390 RCW, which may achieve heightened consumer protections.

Interested researchers -- with background in regulatory systems for CCRCS -- should act quickly as the deadline for submissions is May 23, 2022.   

Click HERE FOR THE FULL DETAILS!  

Caregiving's Impact on the Work Force

Last month, the Washington Post ran this article, Caring for aging parents, sick spouses is keeping millions out of work.

Even as the job market rapidly approaches the levels last seen before the coronavirus pandemic, a lack of affordable care for older and disabled adults is keeping many out of the workforce. At least 6.6 million people who weren’t working in early March said it was because they were caring for someone else, according the most recent Household Pulse Survey from the Census Bureau.Whether — and when — they return to work will play a role in the continued recovery and could reshape the post-covid labor force.

Read these next two paragraphs from the article very carefully:

For all the attention on parents — and mothers in particular — who stopped working to care for children during the pandemic, four times as many people are out of the work force, caring for spouses, siblings, aging parents and grandchildren, according to the Federal Reserve’s latest Monetary Policy Report.

...

Caregiving is the second-largest factor keeping people out of work, behind early retirements, at a time when job openings continue to outnumber potential workers. That mismatch is contributing to labor shortages around the country and playing a role in overall inflation. Roughly one-quarter of the workers missing from pre-pandemic levels are on the sidelines for caregiving reasons, according to the report. Overall, the economy is still short 1.6 million workers, two-thirds of them women, from early 2020.

Did you catch those numbers?  4x as many folks are not working because of caregiving responsibilities, and caregiving is the 2nd most common reason why folks aren't working.

Read the article. It's important!

ACL New Fact Sheet When Public Health Emergency Expires

The Administration for Community Living has released a new fact sheet on what will happen to elders and Medicaid when the public health emergency expires. This fact sheet includes 5 things 

1. Medicaid beneficiaries should make sure their Medicaid agency has their current contact information. They should check their mail and be sure to mail back any Medicaid forms they receive.
2. All renewal forms and notices must be accessible to people with limited English proficiency and people with disabilities.
3. Many people who are no longer eligible for Medicaid will have other coverage options.
4. If someone is disenrolled or their Medicaid coverage changes and they disagree with their state Medicaid agency’s decision, they can appeal.
5. The end of the Public Health Emergency may lead to an increase in utilization of services provided by Older Americans Act programs, Centers for Independent Living, Assistive Technology Act programs, and other ACL grantees.

The fact sheet contains useful explanations and is available for download.