Elder Law Prof Blog

Report on 2024 Annual Sonya L. Patterson Memorial Elder Abuse Symposium in Oklahoma

Recently, I participated in a well-organized CLE event, offered annually as a memorial to a great attorney who passed away too soon.  The Annual Sonya Patterson Memorial Elder Abuse Symposium  is hosted by Legal Aid Services in Oklahoma.  By all accounts, Sonya Patterson, who died in an accident while just a few years into her already notable career as an attorney, is a proper subject of this tribute, as she was deeply concerned with advocacy for individuals who may be victims of abuse, exploitation or neglect.                             

Cutting edge topics were a big part of the summer 2024 program.  For example, one new concern is about "dirty deeds," where fraudsters record deed transfers, often targeting properties without any mortgages, and thus often targeting the equity earned by older owners.  We heard from hard-working staff members in the Oklahoma County Clerk's office in Oklahoma City, where the county has created a registry/notification system for owners as a way to receive an "alert" about potential fraud. In one instance, the fraudster was arrested while in the act, at the County Clerk's office!  We also heard about the very real need for pro bono legal assistance on this topic, as many older owners may not have ready savings or cash to pay private attorneys to catch and cure the fraud.  

Here was the full lineup for 2024 Symposium::

• Introduction to Elder Abuse Law: Cassandra Bobbitt & Richard Goralewicz
• Ageism:  Richard Goralewicz
• Step by Step, Slowly it Can Happen: Examining Dynamics of Conflicts of Interest for Lawyers in Representation of Older Persons and Families
• Oklahoma Legislative Responses to Elder Abuse: Oklahoma Representative Nicole Miller
• Cleaning Up "Dirty Deeds," by representatives of a County's Deed Recording Office and Attorney Christopher Jones 
• Recognizing and Responding to Elder Abuse in Indian Country: Peggy Jo Archer, Judith Kozlowski, Margaret Carson
• Undue Influence and Its Ethical Implications: David M. Postic, Adjunct Professor at University of Oklahoma College of Law

At the invitation of Rick Goralewicz, senior law project attorney with Legal Aid Services in Oklahoma, I used the visually interesting tale of a real-life Irish Pub to discuss very real consequences of failing to recognize conflicts of interest for attorneys attempting to represent both the older adult and other family members on planning transactions.  My special thanks to Rick and Attorney Ana Reynolds for inviting me again this year!  

 

A Broadway Play about "Breaking and Keeping the Family Contract"?

At this time of year, when the Tony Awards are about to be announced, I often wish that I'd seen particular productions, as some will inevitably disappear from the stages soon after the awards are announced.  I realize that is happening again this year, as I read a New York Times piece about the Tony-nominated "Mother Play."  From the article, an intriguing hint of what I'm missing:  

In the decades-spanning “Mother Play,” set in the Washington area where [playwright Paula Vogel] grew up, Carl (Jim Parsons, Tony-nominated for his performance) is Phyllis’s doted-on darling boy. He is also the tenacious champion of his worshipful younger sister, Martha (Celia Keenan-Bolger, likewise), a fictionalized version of Vogel. And he is the child cast out when Phyllis breaks what Vogel described as “a contract of parenting and family,” which is “that you take care of your family when they’re dying, regardless.”

So, does that contract, whether negotiated or not, exist.  Did it exist as a social construct?  Does it still exist as implied obligation?  The play is reportedly about "forgiveness," or as one of the actresses offers, "Age has such an impact on the way that we're able to view our parents and their shortcomings."  

I'm sorry to miss the production, which is scheduled to close on Sunday, especially as it has a great cast, including Jessica Lange, real age 75 (how is that possible....?).  But I'll hope for awards on Sunday night, and the possibility the production might last a bit longer on Broadway.  

Combining Education and Community Service for Pennsylvania Law Students: "Wills for Heroes"

On a recent Saturday in April, I had the privilege of spending the day -- almost 9 hours, in fact -- with first responders and veterans, and sometimes their children, plus attorneys, notaries, and law students at an event in Central Pennsylvania.  The students, lawyers and notaries were all volunteering their time to prepare wills and other key estate planning documents for community area residents at the Cumberland County Good Hope Fire Station, in Mechanicsburg, Pennsylvania.   The Wills for Heroes event had a full slate of 50 spots for clients, and the seats seemed full all day.  In fact the last two sets of documents were witnessed about 4:30 in the afternoon.  Shown here are two Penn State Dickinson Law students, Alaina Kuzmitsky (R) and Devon Lacy (L), working under the direction of a notary and local attorney.

The Wills for Heroes program is organized in Pennsylvania under the auspices of the Pennsylvania Bar Association's  Young Lawyers Division, with the support from individual county bar groups. Paul D. Edgar, Esq., who is the incoming President of the Cumberland County Bar Association, and who currently spends his weekdays in the state Attorney General's office, provided a great training session and set everyone up in the large community room of the very busy Good Hope Fire Station. There were 10 well-spaced tables devoted to interactions between teams of lawyers and law students, for discussion about wills, powers of attorneys and advance health care directives. Separate tables offered witnesses and notaries for final documents.  Law students from both Penn State Dickinson School of Law and Widener Law Commonwealth were fully engaged in the drafting and review process, a great opportunity for combining their hands-on education with public service.   

In addition to Devon and Alaina, the Dickinson Law contingent included several students who were completing an "experiential component" of a Spring semester Elder Law class (Jonathan Biedler, Caitlin Godsey, Talmage Pearce, Devon Lacy, and Joe O'Donnell), three first-year law students (Aidan Levinson, Kristen Ramillano, and Maedot M. Teweldemedhin), two additional upper division law students (Hannah Pasco and Payton Pittman), plus LLM student Naby Bangoura.  Also, one of the practicing attorneys, Fred Gibson, is a recent graduate of Penn State Dickinson Law, who identified his professional interest as potentially including estate planning and elder law while still in school -- and is now helping other law students do the same.    

LLM Student Naby Bangoura wrote to me after the event to express his thoughts on what he described as "key" components to the event, including the use of software that permits customization of the documents.  It was an opportunity for him to recognize how in the United States, the Rules of Professional Conduct governing attorneys apply "even" during free legal services.  He offered a comparative, international perspective, observing: 

"It is truly extraordinary that the Pennsylvania Bar has brought together different professionals, including attorneys, notaries, and students, to assist individuals in drafting their wills at no cost. I have rarely seen this type of synergy and collaboration between professionals from different backgrounds in jurisdictions such as France or West Africa. Although I have attended some pro bono services in France during Covid, which concerned the impact of force majeure on business operations and some remedial measures they could explore, this kind of in-person collaboration and experimental learning is extremely valuable. I wish such initiatives could be experimented with in other parts of the world."

Finally, the firefighters and emergency personnel working at the Station welcomed everyone to their Station with generous offerings of food and coffee throughout the day, and an opportunity to take photos with the fire trucks at the end of the day.  We appreciate your service to the community and it was a pleasure to talk with so many of you.

Pennsylvania Law Schools' Elder Justice Consortium Hosts Free Webinar in Support of National Healthcare Decision Day

In support of the National Healthcare Decisions Day (annually on April 16), the Pennsylvania Law Schools' Elder Justice Consortium hosted a free webinar on April 9, 2024.  The hour-long webinar, soon to become available also as an on-demand recording, introduces a host of topics relevant to advance planning, whether for attorneys in assisting clients, or for the public, including introduction to the types of documents that individuals might want to adopt (such as a Healthcare Power of Attorney, a "Living Will," or a single document that combines both concepts), and what steps are important in making your wishes known to your chosen agent and supporting family members or healthcare providers.  

This free webinar was another "first" for the EJC Consortium -- providing an opportunity for  legal educators to reach audiences outside the doors of each of our law schools. 

Here is a short article authored by one of the attendees, Jonathan Biedler, a third-year law student at Penn State Dickinson Law, whose own post-graduation plans focus on estate planning and elder law.  Jonathan writes:

The EJC includes all the Pennsylvania law schools and was formed in 2022 at the call of the Pennsylvania Supreme Court. This was in response to the growing recognition of the need for advocacy on elder justice: neglect, abuse, decision-making, housing, etc., as the senior population of Pennsylvania grows. The goal is to combine the specialized experience of clinic professors, classroom professors, career services, deans, and students as members. The Webinar was in anticipation of National Healthcare Decision Day, which is on April 16th, the day after Tax Day. This date was suggested by attorney Nathan Kottkam in 2006 and was inspired by Benjamin Franklin’s famous statement that "in this world nothing can be said to be certain, except death and taxes" with the idea being to encourage people to also think about end-of-life planning and advance directives.

 

The EJC Webinar was moderated by Duquesne Kline Law Professor Kate Norton, the EJC’s first chair. Speakers were the EJC’s incoming Co-Chairs Grace Orsatti (Duquesne Kline Law) and Mary Catherine Scott (Widener Law Commonwealth), Brandon Corbalis of the SeniorLAW Center, Professor Spencer Rand of Temple Legal Aid Office, Professors Monica Harmon, a healthcare professional at Drexel's Dornsife Center for Neighborhood Partnerships and Professor Katherine Pearson, Penn State Dickinson Law, and Clinic Students Eliza Hens-Greco and Nick Piccirillo, both of  Duquesne Kline School of Law.

 

The speakers discussed the role of Elder Law. Elder Law, in a broad sense. focuses on those aged 60 or older and their family members, often including people with special needs.  Professor Pearson said that as opposed to estate planning’s focus on after death plans, Elder Law often emphasizes protecting and enabling the older client financially and personally in life. The speakers discussed the Office of Elder Justice in the Courts, set up by the Pennsylvania Supreme Court to advise the courts on how to prevent elder abuse, 

 

We heard an update on Act 61, a new Pennsylvania law that will be be implemented by courts by June of this year, with key features requiring appointment of counsel for those alleged to be in need of a guardianship, plus training and certification of all guardians, and a requirement for Pennsylvania courts to make specific determinations whether there are less restrictive alternatives than "guardianship" that would better serve the needs of an alleged incapacitated person.

 

Of course, given the theme of the program, the speakers also discussed the importance of advance healthcare directives, which are legal documents laying out a person's instructions relating to medical care and they recommended that people of all ages should have a document reflecting their goals. Such written documentation have recognition "under the law" and thus can support individual  autonomy and the ability to make decisions for ourselves. The speakers emphasized the importance of making sure your primary care and emergency doctors have access to -- and actually review -- the advance directive. Law students Eliza and Nick talked about their own experiences working with clients on advance directives and how at first it was scary and a bit sad to begin the conversation, until they shifted their mindset to think about the conversation as bringing peace and clarity for both the client and the client’s family. In closing remarks, Professor Monica Harmon, speaking from her experience in nursing and public health, emphasized that advance directives can be individualized and encouraged talking with the person you wish to name as decisionmaker to convey that nuances that may be hard to fully encode on the written page.

 Thank you, Jonathan, for this write-up!

 

 

Updates on Aid-in-Dying Legislation

I noted a couple of developments  concerning medical aid-in-dying laws that I wanted to share.

First, Vermont became the second state to eliminate the reseidency requirement for aid-in-dying.  This change was pursuant to litigation by a plaintiff in Connecticutt. See Vermont Removes Residency Requirement for Medically Assisted Deaths  and   see VT HB 190,  https://legislature.vermont.gov/bill/status/2024/H.190. The language of the bill amending the statute is available here.

And on the other side of the issue of the right to assistance-in-dying, a group in California has challenged their law. Kaiser Family Foundation (KFF) Health News reported last month that Disability Rights Groups Sue to Overturn California’s Physician-Assisted Death Law. The article notes the platinffs' argument that "that recent changes make it too easy for people with terminal diseases whose deaths aren’t imminent to kill themselves with drugs prescribed by a doctor" and that this law and its process "'steers people with terminal disabilities away from necessary mental health care, medical care, and disability supports, and towards death by suicide under the guise of ‘mercy’ and ‘dignity’ in dying,' the suit argues. The terminal disease required for assistance is, by definition, a disability under the Americans with Disabilities Act...."  A story about the litigation is available on NPR here.

Pennsylvania Legislators Discuss Proposed Legislation on Compassionate Aid in Dying with Penn State Dickinson Law Students

It is getting near the end of the semester, but we are continuing to have important topics and guest speakers at Penn State Dickinson Law in our Elder Law modules.  Today's speakers were Representative Tarik Khan and Representative Carol Hill-Evams. who led the discussion about a bill they are sponsoring on Compaasionate Aid in Dying for Pennsylvania.   Representative Hill-Evans is the lead sponsor on the current version and opened the session with a powerful story about a constituent who explained her reasons for promoting this law.  

Pennsylvania House Bill 543 was introduced in March 2023 and is currently assigned to the Health Committee of the Pennsylvania House.  We  heard that plans are underway to begin hearings, with people tesstifying why they do -- or don't -- want to see  a legal option enacted that makes it possible  for a person who is terminally ill to choose "medical assistance in dying." After class, two of  the students approached me with good suggestions about potential clarifications for the new bill, thus contiinguing the conversation with the legislators.  

Next week is our last class of the semester, where students will be giving oral presentations on various Death with Dignity laws or movements, both in the United States and in outher nations, as well as presenting on other choices people may consider near  the end of their lives.   

Our speacial thanks to all of our guests during this busy semester, including legislators, Elder Law attorneys, the owner of a funeral home, and representatives from hospice and other health care providers.    

Canada Medically-Assisted Death

The New York Times recently ran this article, Is Choosing Death Too Easy in Canada? "Last year, Canada changed its assisted death law, permitting people with chronic, “grievous and irremediable” conditions and physical disabilities to commit suicide, even if they are not terminally ill."  As far as how Canada compares to other countries, "Canada is among 12 countries and several American states where assisted death is permitted in certain circumstances. Since last year, it has been one of at least three — including Belgium and the Netherlands — that allow an assisted death if the person is suffering from a chronic painful condition, even if that condition is not terminal."  Part of what is causing debate, according to the article, is a change that takes effect in March of 2023, when "the law will expand again, to apply to people with some mental disorders. A Parliamentary committee of lawmakers is studying what standards should govern those cases; its report is expected in the fall."  The article discusses views of opponents and proponents and includes some stories of Canadians. Read the article. It will be great for a basis for class discussion!

 

 

Private Equity in the Business of Hospice?

Kaiser Health News a couple of weeks ago ran an article, Hospices Have Become Big Business for Private Equity Firms, Raising Concerns About End-of-Life Care.  "Hospice care, once provided primarily by nonprofit agencies, has seen a remarkable shift over the past decade, with more than two-thirds of hospices nationwide now operating as for-profit entities. The ability to turn a quick profit in caring for people in their last days of life is attracting a new breed of hospice owners: private equity firms."  Check this out: "According to a 2021 analysis, the number of hospice agencies owned by private equity firms soared from 106 of a total of 3,162 hospices in 2011 to 409 of the 5,615 hospices operating in 2019. Over that time, 72% of hospices acquired by private equity were nonprofits. And those trends have only accelerated into 2022."  

The article explores concerns expressed regarding private equity firms owning hospices, including quality of care and profit margins. It also discusses for-profit vs. non-profit hospices.  Check it out!

New Florida Law on Visitation for Health Care Facilities

NPR among other news agencies, reported on a new law signed by the Florida governor about 2 weeks ago, New laws let visitors see loved ones in health care facilities, even in an outbreak. As the U.S. News article, DeSantis Signs Hospital Visitation Bill, Other Legislation, explains, "[t]he visitation bill requires that health care facilities, including nursing homes, allow in-person visits during end-of-life situations and in most other cases. DeSantis and other state health officials said the measure was inspired by hospitals limiting visits during the coronavirus pandemic... Under the law, health care facilities have to establish visitation rules that include infection control and education policies for visitors. The policies cannot be more stringent than safety rules applied to the facility's staff and may not require proof of any vaccination or immunization. A health care center can suspend in-person visitation for specific people if they violate rules."

 

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

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. 

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!  

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.

Roundup of Articles Part 2

Here are the rest of the news items I mentioned in yesterday's post.

Nursing Homes Bleed Staff as Amazon Lures Low-Wage Workers With Prime Packages

National Guard Empties Bedpans and Clips Toenails at Nursing Homes

Why Older Women Face Greater Financial Hardship Than Older Men

From my friend Morris Klein, Increasing Medicaid’s Stagnant Asset Test For People Eligible For Medicare And Medicaid Will Help Vulnerable Seniors

Nursing Hone Visitation FAQ ( CMS updated January 6, 2022).

A Catch-22 Trips Up Some in Legal Guardianship Who Try to Regain Independence

Man becomes first person in Colombia with non-terminal illness to die by legal euthanasia

and

Colombian woman dies by euthanasia after historic legal fight

and finally from my friend Professor Richard Kaplan, Richard L. Kaplan (Illinois; Google Scholar), When the Stepped-Up Basis of Inherited Property Is No More, 47 ACTEC L.J. 77 (2021) (see Tax Law Prof Blog for synopsis)

Now we are all caught up.  More next week!

 

 

Roundup of Articles

I've been off the grid for a while, so I have a backlog of articles for the blog.  I think they are interesting, even though they may be dated by a couple of months. So I'm going to list some of them here and if the topic interests you, click on the link to read the article.  There are so many, I'm not going to summarize or discuss them.

Lowe’s sees sales growth by helping baby boomers stay in their homes.

Costs and considerations for home health care of aging loved ones in Florida. (48 minute podcast plus accompanying article)

End-of-life conversations may be helpful to patients and families

From my friend Professor Naomi Cahn: Contextualizing Menopause in the Law.

The data that shows Boomers are to blame for the labor shortage

‘Greatest Generation’ runs counter to its wholesome image in survey on race, sex and combat during World War II

Private Equity Is Gobbling Up Hospice Chains And Getting Involved In The Business Of Dying

Three key numbers that explain America's labor shortage (discussing early retirement).

I have more for tomorrow's post and then I'll be "caught up" with the news!

California Aid-in-Dying Statute Revisions

You may have already read about this, but just in case....  Kaiser Health News has reported about changes to California's aid-in-dying law.   New California Law Eases Aid-in-Dying Process explains that "in October, Gov. Gavin Newsom signed a revised version of the law, extending it to January 2031 and loosening some restrictions in the 2015 version that proponents say have become barriers to dying people who wish to avail themselves of the law." This change becomes effective in 2022. 

With the original law, as an example, "patients who want to die must make two oral requests for the medications at least 15 days apart. They also must request the drugs in writing, and two doctors must agree the patients are legally eligible. After receiving the medications, patients must confirm their intention to die by signing a form 48 hours before ingesting them."

Now, with the changes, "the revised law reduces the 15-day waiting period to just two days and eliminates the final attestation [and] requires health care facilities to post their aid-in-dying policies online. Doctors who decline to prescribe the drugs — whether on principle or because they don’t feel qualified — are obliged to document the patient’s request and transfer the record to any other doctor the patient designates."

The article offers poignant examples, provides statistics, and discusses the approach of insurance companies for coverage of the prescription ("[M]ore than 60% of those who take the drugs are on Medicare, which does not cover them. Effective life-ending drug combinations are available for as little as $400.")

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...."

 

NM Aid In Dying Law Compared to Other Statutes

A recent opinion piece in USA Today was comparing the provisions of the New Mexico Aid-in-Dying law to those in other states, Terminal patients deserve death with dignity. New Mexico aid-in-dying law sets standard.
According to the author, there are 3 sections of the statute that are improvements over statutes in other states:

• Offsetting the growing physician shortage statewide. The law mirrors the practice of medicine found in other fields and allows advanced practice registered nurses and physician assistants to use their training to serve as either the prescribing or consulting clinician.
• Requiring only one written request and one 48-hour waiting period between receiving and filling the prescription for aid-in-dying medication. The prescribing provider has the ability to waive the 48-hour waiting period if the terminally ill person is likely to die during that waiting period.

• Clarifying that if a health care provider objects to participating in medical aid in dying, they must inform the terminally ill person and refer them to either a willing provider or a party who can help the terminally ill patient find assistance.

  Furthermore, providers that oppose medical aid in dying must accurately and clearly disclose that on websites and in any appropriate materials given to patients.  

The law also takes a different approach to the waiting period used in other states, and according to the author, Oregon shortened its waiting period a couple of years ago "to allow doctors to waive the 15-day waiting period" and recently, "California passed legislation to improve access ... by reducing the mandatory 15-day waiting period between the two requests for aid-in-dying medication to 48 hours."