Elder Law Prof Blog

Recent Study on POLST

POLST and other advance medical planning should not be a one-time conversation according to a recent study.

Two new studies from Indiana University and Regenstrief Institute focus on POLST, a medical order form widely used in nursing homes that documents what life-sustaining treatments a person prefers to receive or not receive, such as hospitalization or comfort-focused care. The studies, published online ahead of print in the Journal of the American Geriatrics Society (JAGS), found discrepancies between medical orders recorded in the POLST form and nursing home residents’ (or surrogate decision-makers, for those unable to make their own decisions) current treatment preferences and explore reasons for the lack of agreement.

Further

The researchers found that less than half of all POLST forms of the 275 study participants matched current treatment preferences for resuscitation, medical interventions, and artificial nutrition. However, the POLST was more than five times as likely to agree with current treatment preferences when these orders reflected preferences for comfort-focused care. In interviews, participants reported the mismatch was due to factors including a lack of key information when they filled out the form and not revisiting POLST when the resident experienced a change in condition.

Thanks to my friend Morris Klein for sending me the link to this story. 

Mass. Medical Aid-In-Dying Bill Reintroduced

The End of Life Options Act has been reintroduced in Massachusetts. This article notes an overwhelming support by U.S. adults for aid-in-dying.  The article also includes a short podcast of the story. If this bill passes, Massachusetts will join a handful of other states where aid-in-dying is legal Stay tuned.

Vatican: Rethink How Care for Elders

Recently released: The Vatican wants the world to rethink how it cares for the elderly after Covid-19 ‘massacre’.

The Vatican is calling for a new paradigm of care for older people after what it calls the "massacre" wrought by the coronavirus pandemic, which has disproportionately killed people living in nursing homes.

The Vatican's Pontifical Council of Life issued a position paper Tuesday that made the case for a global rethink of how to care for people in their final years, including resisting any rush to institutional care in favor of adapting home environments to the needs of people as they age.

Calling for visionary thinking to develop a new way of providing care for elders,  "[t]he document praised new models of assisted living that provide companionship and care where needed but, in preserving autonomy and independence, fall short of an institutional facility. And it called for greater assistance to families who are able to care for their loved ones at home for as long as possible."

Wrongful Life Litigation

A couple of weeks ago the New York Times ran this article,  Filing Suit for ‘Wrongful Life’, which asks this question: "More Americans are writing end-of-life instructions as the pandemic renders such decisions less abstract. But are medical providers listening?" The article features one case in litigation where the surviving spouse claimed that the health care providers failed to honor the patient's directive claiming the health care providers "disregarded a New York State MOLST — medical orders for life-sustaining treatment — form and his spouse’s explicit instructions to a doctor who called to seek her guidance."  The article gives a good explanation of the issues and a review of prior cases on similar topics. This is an important issue and I'm going to have my students read the article.

More on SNFs and COVID

It's going to be some time before we see good news stories about residents of SNFs---although the vaccination of SNF residents is good news.  So here are several recent articles regarding SNFS and COVID-but be forewarned, these first two are not easy to read.

51 lost lives: A portrait of the pandemic’s tragic toll in America’s nursing homes

South Dakota’s COVID-19 Surge Is Turning Nursing Homes Into A ‘Battle Zone’

There are just no words....

Then: 

An investment firm snapped up nursing homes during the pandemic. Employees say care suffered.

(Thanks to Morris Klein and Professor Bauer for sending me the link to this article).

and finally

With Vaccine Delivery Imminent, Nursing Homes Must Make a Strong Pitch to Residents.

This last article brings up some interesting issues for class discussion-such as consent, refusal of consent, and inability to consent.

Please everyone-stay safe and remember to thank our first responders, health care professionals and essential workers. And let us never forget those we have lost to this pandemic.

Podcast on End of Life Decisionmaking in Guardianship Cases

GeriPal, a geriatrics and palliative care blog, has released a podcast, Guardianship and End-of-Life Decision Making: A Podcast with Andy Cohen and Liz Dzeng, discussing  a recent study led by Dr. Cohen.

The big surprise finding of this study was veterans who were nursing home residents aged 65 and older with moderate to severe dementia and who had a professional guardian were no more likely to receive high‐intensity treatments than the same population who died with decision makers who were not professional guardians.   We talk to Andy about his study, potential reasons behind the study, and what, if anything, we should do differently knowing these results. We also talk to Liz about whether substituted judgement is really all that it’s cracked up to be.

The article, Guardianship and End‐of‐Life Care for Veterans with Dementia in Nursing Homes  and editorial, We Need a Paradigm Shift Around End‐of‐Life Decision Making,  are available here and here.

Spain's Parliament Votes to Legalize Euthanasia

According to a story yesterday in the AP news, Spain’s parliament vote[d] to legalize euthanasia. The bill provides for medical aid-in-dying or euthanasia "for long-suffering patients of incurable diseases or unbearable permanent conditions." The bill next goes to their Senate. The article notes that                       "[e]uthanasia — when a doctor directly administers fatal drugs to a patient — is legal in Belgium, Canada, Colombia, Luxembourg, the Netherlands and Switzerland. In some U.S. states, medically-assisted suicide — where patients administer the lethal drug themselves, under medical supervision — is permitted." The bill requires multiple requests by the patient, the first 2 of which must be written and made with two weeks between the requests.  Medical professionals must be involved and requests are reviewed and granted by a regional oversight board. Only adult Spanish residents or citizens who can make rational decisions would be able to make such requests.

 

 

, 

Visiting Family at SNFs-6' Apart

Some SNFs and ALFs are now allowing visits for residents, with proper precautions, rather than an absolute ban on visits.  Kaiser Health News  ran an update, States Allow In-Person Nursing Home Visits As Families Charge Residents Die ‘Of Broken Hearts’.

For the most part, visitors are required to stay outside and meet relatives in gardens or on patios where they stay at least 6 feet apart, supervised by a staff member. Appointments are scheduled in advance and masks are mandated. Only one or two visitors are permitted at a time.

Before these get-togethers, visitors get temperature checks and answer screening questions to assess their health. Hugs or other physical contact are not allowed. If residents or staff at a facility develop new cases of COVID-19, visitation is not permitted.

Slightly over half of the states have have allowed these SNF visits, after he release of revised guidance from CMS, while slightly less than half of the states have allowed ALFs to follow the same path. This change is something of a balancing act, and the article notes this can change if COVID cases show up. Although the prohibition on visits was intended as protection, 

[A]nguished families say loved ones [suffered]too much, mentally and physically, after nearly four months in isolation. Since nursing homes and assisted living centers closed to visitors in mid-March, under guidance from federal health authorities, older adults have been mostly confined to their rooms, with minimal human interaction.

A separate, but related issue, the right of visitation at the end of life, has not been evenly applied.

Although federal guidance says visitors should be permitted inside long-term care facilities at the end of life, this is not happening as often as it should, said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy group.

She wants family visitation policies to be mandatory, not optional. As it stands, facility administrators retain considerable discretion over when and whether to offer visits because states are issuing recommendations only.

Smetanka’s organization has also begun a campaign, Visitation Saves Lives, calling for one “essential support person” to be named for every nursing home or assisted living resident, not just those who are dying. This person should have the right to go into the facility as long as he or she wears personal protective equipment, follows infection control protocols and interacts only with his or her loved one.

The article also includes a map of states allowing visitation.

NYT: Boom(er?) Time for Planning where Death Triggers Next Events

The New York Times has an article that might be particularly useful for faculty members teaching Wills, Trusts & Estates or Elder Law courses in the Fall.  

From the article, titled "Boom Time for Death Planning:"

The coronavirus pandemic has drawn new buiness to startups that provide end-of-life services, from estate planning to a final tweet. . . . 

Before the pandemic, end-of-life start-ups — companies that help clients plan funerals, dispose of remains and process grief — had experienced steady to moderate growth. Their founders were mostly women who hoped a mix of technology, customization and fresh thinking could take on the fusty and predominantly male funeral and estate-planning industries.

Still, selling death to people in their 20s and 30s wasn’t easy. Cake’s team sometimes received emails from young adults, wondering if the site wasn’t a tad morbid. Since Covid-19, this has changed. Millennials are newly anxious about their mortality, increasingly comfortable talking about it and more likely to be grieving or know someone who is.

Topics and Speakers Announced for AALS January 2021 Program on Intersectionality, Aging and the Law

Hard to believe we are scheduling for January 2021, isn't it!  Here's the scheduled speakers and topics for the co-hosted program during the AALS Annual Meeting in San Francisco on "Intersectionality, Aging and the Law:"

• 
  Alex Boni-Saenz (Chicago-Kent), Age Diversity
• 
  Naomi Cahn (GW) & Nina Kohn (Syracuse), How Law and Sex Shape What It Means to Be Old
• 
  Veronica C. Gonzales-Zamora (UNM), The Triple Threat: Millenium Women of Color
• 
  Jessica Mantel (Houston), Allocating Scarce Medical Resources During a Pandemic: Rationing Based on Age is not the Same as Rationing Based on Disability
• 
  Katherine Pearson (PSU-Dickinson), Pandemic Protections: Where is the Line in Patient Autonomy?
• 
  Tara Sklar (U Arizona), Frailty, Vulnerability, and Big Data
• 
  Ruqaiijah Yearby (SLU), The Dark (Trinity): How Structural Discrimination, Wealth Inequalities, and Lack of Access to Health Care Cause Health Disparities for Elderly Women of Color

Using Advanced Age as a Factor in Rationing Health Care? Consider the Arizona COVID-19 Crisis Plan

I've recently returned from a week in Arizona with family.  I managed to arrive in Phoenix just in time for a surge in COVID-19 cases, traffic headaches connected to President Trump's campaign visits, a couple of new wildfires, and a few more degrees up the summer temperature gauge.  Probably the most newsworthy part of the trip was the announcement by Arizona authorities that the state was activating a COVID-19 crisis plan that involves triage -- or "rationing" as some  people interpreting the plan are calling it.  One component of the Arizona plan involves "protocols for scarce resource allocation."  An Arizona public statement describing the protocols attempts to reassure the public (emphasis provided with blue color):

If resources are sufficient, all patients who can potentially benefit from therapies will be offered therapies. If resources are insufficient, all patients will be individually assessed. No one will be categorically denied care based on stereotypes, assumptions about any person’s quality of life, or judgement about a person’s “worth” based on the presence or absence of disabilities.

All patients, regardless of resource availability, will be treated with respect, care, and compassion. Triage decisions will be made without regard to basis of race, ethnicity, color, national origin, religion, sex, disability, veteran status, age, genetic information, sexual orientation, gender identity, quality of life, or any other ethically irrelevant criteria.

When resources become inadequate -- implicit in the Governor's recent news conferences -- triage involves a color-coded system of triage "priority scores."  According to the statement, "All patients will be eligible to receive critical care beds and services regardless of their triage score, but available critical care resources will be allocated according to priority score, such that the availability of these services will determine how many patients will receive critical care."

The guidelines indicate health care providers must make an active assessment of the "patient's goals of care and treatment preferences.  It is imperative to know whether aggressive interventions such as hospitalization, ICU admission or mechnical ventilation are consistent with a patient's preferences.... All hospitalized patients should be asked about advance care planning documents, goals of care, and are strongly encouraged to appoint a proxy decision-maker (e.g., medical durable power of attorney... or health care agent) if not previously in place.  Patients in nursing homes, skilled nursing facilities, other long-term care settings, and outpatient care settings should also be asked about their goals of care and advanced care planning documents.... If advance clare planning documents are in place and available the healthcare provider should verify the patient's goals of care and treatment preferences remain the same....."

Will the patient's age, especially an advanced age, be relevant to a Arizona's Covid-19 crisis plan?  On the one hand, the guidelines indicate "age" is  expressly "removed ... as a specific factor for Triage Priority scores or Triage Color Groups."  On the other hand, when determining the Triage Priority Score, points assessed must reflect an evaluation of whether the patient is "expected to live more than 5 years if patient survives the acute illness [zero points added]" or whether death is "expected wtihin 5 years despite successful treatment of acute illness [2 points added]." If "death [is] expected within 1 year regardless of successful treatment of the acute illness," 4 points are added.  The patient's prioritization for critical care resources is best with a low score (1 to 3 total points), while priority is reduced to "intermediate" (4 to 5 points) or "lowest," if they are assessed with more than 6 total points.  Further, "age" is implicitly involved as the prioritization process somehow examines the specific patient's "opportunty to experience life stages (childhood, young adulthood, middle years, and older years)."

These are obviously tough calls in any health care assessment contect, but especially so in the middle of a pandemic.  Public health professionals have experience with these kinds of assessements. I suspect that many families also have engaged in a type of informal assessment when serving as a loved one's health care spokesperson or agent. 

My sister and I were thinking about last summer as I visited this summer.  Last summer, the two of us talked about similar factors when making the call on whether our mother would have hip-surgery at age 93 following a fall-related fracture.  The doctor said that without the surgery our mother was unlikely to walk again because of pain; with the surgery there was a significant chance she would be able to walk without pain.  She ended up sailing through the surgery -- and began taking steps again the same day.  Ironically, probably because of her increasing dementia, she had no fear of falling nor any memory of the surgey and thus was soon fully ambulatory (although she did sometimes substitute a walker for her occasional cane) and remained so for all but the last few days if the next six months of life.  That took her into the summer of 2019 in Arizona.

If the cornonavirus pandemic had occurred in the summer of 2019, and if safe access to hospitals and surgery were the issues, my best guess is Mom would probably have had a "high" score on any health care triage assessment -- in other words, not good news.  We are glad we never confronted decisions about respirators or ventilators.  We do know that our very elderly mother had a much better quality of life with major surgery than she would have had without it. Just one case, of course.  Again, tough calls (and yes, expensive calls for Medicare) with or without a pandemic to complicate the decision process.  

Oklahoma Legal Aid Services Update: 3rd Annual Memorial Elder Abuse Symposium Goes Virtual, Starting June 15

This year, the Sonya L. Patterson Elder Abuse Symposium hosted annually by Legal Aid Services of Oklahoma, will take place over the course of several weeks, in bite-size programming, rather than in a single, all-day conference format.  In light of the online setting, the organizers are also able to open up registration and attendance to interested people outside of Oklahoma; however, there are limits on the number who can attend each session, so I recommend registering early. In past years, the symposium has drawn an audience of attorneys, law enforcement and social workers, with CLE credits available.

I'm very pleased for the opportunity to be a speaker this year. In addition to attorneys and judges, the speakers include health care professionals and bankers.  The program honors the life and advocacy of a young Oklahoma public interest attorney, Sonya L. Patterson, who passed away far too soon in 2015, as the result of an accident at the age of just 30. 

Here's the line up for the midday Symposium Webinar Series , with all sessions taking place on Central Daylight Savings Time:

Session 1: Monday, June 15th (11:00 am to 1:45 pm)

1. The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
2. Attorney Responsibility to Client’s Ward or Principal- Rick Goralewicz, Staff Attorney, Legal Aid Services of Oklahoma

 

Session 2: Monday, June 22nd (11:00 am to 1:15 pm)

1. Financial Exploitation of the Elderly- Justice Scott Roland, Oklahoma Court of Criminal Appeals with Elaine Dodd, Executive Vice President/ Fraud Division at Oklahoma Banker's Association and Jennifer Shaw, Oklahoma Securities Commission
2. Extreme Home Takeover: Dealing with the “Concerned Relative”- Katherine C. Pearson, Professor of Law at Dickinson Law, Pennsylvania State University, Carlisle Pennsylvania

 

Session 3: Wednesday, June 24th (11:00 am to 1:15 pm)

1. Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
2. Experts: Identifying and Utilizing in Elder Abuse Litigation- Kara Vincent, Attorney, Barber and Bartz

 

Session 4: Monday, June 29th (11:00 am to 1:15 pm)

1. Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
2. Abuse in Institutional Settings- William Whited, State Long Term Care Ombudsman and Nicole Snapp-Holloway, Attorney at Maples, Nix and Diesselhorst

 

Session 5: Wednesday, July 1st (11:00 am to 1:15 pm)

1. Incompetency, Incapacity and Vulnerability- Mark Holmes, Attorney at Holmes, Holmes and Niesent, PLLC, Travis Smith, Attorney at Holmes, Holmes and Niesent, PLLC and Cathy Wood, Adult Protective Services
2. Isolation and Loneliness- Laurel Dinkel, LCSW, Norman, Oklahoma

Click HERE for access to registration information for individual sessions or  the entire series. My thanks to Oklahoma Legal Aid Staff Attorney Rick Goralewicz for the invitation.  

Barbara Pfeffer Billauer: An International Perspective on Ageism in the Time of Corona

George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on  "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona."  This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed.  She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years.   Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."

She continues:

It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.

 

At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.” 

Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."

Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.

She questions the statistical basis for some governments' decisions to impose mandatory isolation:

The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.

 

But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?

She is provocative.  She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.

For more, read the full blog post linked above.  For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!

 

It Isn't Just "Nursing Homes"

One way to frustrate anyone operating an assisted living, life plan community, continuing care community or other congregant living situation is to refer to their centers as "nursing homes."  Many people have a fixed, negative mental image of a nursing home.  And when it comes to quality of life indexes, senior living settings that offer options for meal arrangements,  independent living units, daily activities, participation in off-campus events, recreational outlets (such as swimming, gyms, billiards, or golf), assistance with a range of activities of daily living, assistance with memory-based tasks such as medications, etc., typically defy the negative stereotypes. At least they do for those who actually take the time to visit.  

But, sadly, the potential for wide transmission of Covid-19 does not spare the more "active" senior living models. A Philadelphia Inquirer May 18 article reports that Coronavirus Invaded These South Jersey Senior Communities, Despite Managers's Best Efforts.  Some of the locations described in the article I recognize as very high-end, continuing care communities. But money alone isn't insulation.  How money is used can be a factor.  Some especially interesting excerpts from this article:

• A facility’s government quality rating, whether it was a for-profit business, and how much of its budget came from Medicaid, did not predict whether it had cases, said David Grabowski, a health-care policy professor at Harvard University whose study looked at whether nursing homes had any cases, not how many. He said facilities with more staff, PPE and ability to group patients with similar disease status together might have better odds of avoiding major outbreaks.
• Most of [the cases as one continuing care community in New Jersey, known as ] Lions Gate . .  . have been in its nursing home, but there have been 18 in assisted living and one in independent living. Their first case was on March 30, again in a staff member. As the numbers mounted, Lions Gate started testing more widely and found cases among people without symptoms. [CEO Susan Love] does not know how the first employee got it or how it spread. The community tried to confine sick patients to one floor of the nursing home and to assign specific employees to care only for them. Some assisted-living residents were also seen by outside private aides and hospice workers. The average age of the 12 residents who died was 93, Love said. Four were on hospice care. Only five residents who tested positive went to the hospital. Most did not want to go
• [At another New Jersey CCRC],  seven of the 13 residents who died were on hospice. None wanted aggressive medical care, [Executive Director] Clancy said. He takes comfort in knowing that "we abided by the wishes of every single one of them who passed away.”

 

The highlighted sentences in the last two paragraphs raise an important concept I haven't seen discussed often in Covid-19 themed articles.  A friend of mine who is a lawyer who works outside of aging issues asked me recently why I thought the death rate "in" nursing homes or other senior care facilities was "high."  I think one possibility is that such facilities have honest conversations with new residents and their families about "end of life decisions" and it is entirely possible the residents and their family members have given clear, written directions that they do not want to be transferred to hospitals in the event of a life-threatening development.  

 

 

Is "What Kinds of Tests?" Just As Important As "Whether to Test" in LTC?

Another interesting conversation with a long-term care administrator this week was about "what kind of tests" are important in the Covid-19 context, especially for older adults in a congregate setting.  A first question is whether every member of the staff and the residents should be tested regardless of the presence or absence of any symptoms.  A Washington Post editorial on May 14, 2020 called for "extreme measures"  Of course, the utility of such threshold testing mandates depends upon the availability of the means to test and how quickly the results of the tests will be processed.  It is unlikely that the nation's  number of residential care facilities will have the White House's "instant" testing equipment, right? 

But when Covid-19 is present in any congregate care setting, the administrator explained a second test may be even more important.   The test is for oxygen levels, taken with a monitoring device, sometimes referred to as an oximeter and often attached to a finger of the person in question. She explained to me that with Covid-19, the impairment of the lungs can occur with dramatic quickness and not necessarily with any complaints from the patient about shortness of breath.  The director explained that donations of oxygen concentrators to her community meant they are able to respond to lowered oxygen levels within seconds -- rather than within life threatening minutes or hours -- to provide enhanced oxygen for the resident.  Further, many at-risk people resident not in nursing homes, but in the many other variations of congregate senior care. 

Have you tried to convince a person with a cognitive impairment or an anxiety disorder to wear a mask or agree to keep that oximeter attached to their hand?  Will "extreme measures" include funding to support needed increases in care-staff ratios?  

"Hey, how about giving it a rest, Bro?" -- The Importance of Achieving Consensus in Family Care Giving

Earlier today I had a conversation with someone about family dynamics during the Covid-19 crisis in the context of caring for elderly family members.  The caller is the one who holds Power of Attorney for her older family member and who has been doing a lot of tough stuff, including care decisions for more than an year, decisions such as whether assisted living was appropriate, whether the beloved (but annoying) cat can go to assisted living with the family member, whether the larger family will somehow find a way to pay for a single occupancy room when the resident's own finances aren't enough, and whether the family member's increasing dementia will require additional one-on-one support, also requiring additional money.  

But the call wasn't about any of those complicated parts of third-party decision-making challenges.  It was about "can I tell my brother to back off? He's driving me crazy. He's 600 miles away from here. On the one hand he says, its up to me to make the decisions; on the other hand, when he hears from [our loved one] about being unhappy, he tells me what I should have done. Why didn't he say that before I had to make a decision?" 

And then, not ten minutes after that conversation, I talked with a friend who is a director at a long-term care facility.  She told me about how a big blowup occurred, because an adult child of one of their residents "found out" about the parent's Covid-19 diagnosis because of Facebook.  The adult child called the director, upset about not hearing this information directly.  The director, staying calm, tried to explain that the decisions about timing of communication on this topic were made by the resident's spouse -- and suggested the child call the spouse for more details.  That in turn resulted in the spouse calling the director, in tears, about what the child had said.  

So, perhaps in any context of long-term care, we all need to recognize that caregiving decisions are complex, fact specific, often requiring quick action.  If the person who is the center of the care, the one who is loved (right?),  and about whom the family is worrying, has made his or her own decisions about who is the Power of Attorney or other agent, we just need to take a deep breath before we criticize.  

Or as one person wrote to me, in still another caregiving context, he was lucky he was "not having to navigate this alone," because he, his brother and sister were working hard to use their respective backgrounds (medicine and law) to strive for family consensus when called upon to make tough decisions for their parents.  But when consensus isn't possible -- and that will happen -- he knew that one or more of them might have to "give it a rest" with well-meaning, post-decision advice.  

 

 

AALS Call for Papers/Presenters on Intersectionality, Aging and the Law

The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January.  The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."  

I like this definition of "intersectionality": 

The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.  Example:  "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."

We need great presenters!  

From Naomi Cahn at George Washington Law:

We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics.  The conception of the program is broad, and we are exploring publication options.

If you are interested in participating, please send a 400-600 word description of what you'd like to discuss.  Submissions should be sent to Professor Naomi Cahn, ncahn@law.gwu.edu, by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.  

AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times:  The Power of Words

 

ABA Commission Releases App on Mind Your Loved Ones

The ABA Commission on Law & Aging  has released their smart phone app, Mind Your Loved Ones (MYLO):

Mind Your Loved Ones, known as MYLO, is a mobile app that gives individuals the ability to store their own and their loved one’s critical medical information, health care directives, and other related data on their Apple or Android phones, iPads® or tablets. Users can send this information directly to health care providers (e.g. their doctors, hospitals, insurance companies, etc.), to their family members or trusted friends by email, fax, text, or print.

Whether away at college, in a retirement community or nursing home, traveling for work or leisure, MYLO has your information and documents, and those of your loved ones, accessible 24/7 with just a click.  That’s the power of MYLO–the perfect "just-in-case" app.

Here's some additional info about the app's capabilities:

With this app individuals can store on their smartphones their health care advance directives along with other key medical information-- such as medications, physician contacts, insurance information, medical notes, and any other material important to them. Loved ones whom the individual chooses can carry the same information on their phones. They don’t have to hunt for the information in their files or sign on to a web page to get it. There is no limit to the number of profiles that can be stored. Individuals and their loved ones will have immediate access to all the information if an event occurs when that information is needed, so that they can view it, email it, or fax it to whomever or wherever it is needed.

In the midst of this pandemic, having this info so easily accessible is definitely a plus.

Stay safe everyone!

Journal of Elder Policy Calls for Papers related to COVID-19, Policy and Older Adults

Our friend Professor Naomi Cahn at George Washington Law has advised us that the peer-reviewed Journal of Elder Policy is planning a special issue related to COVID-19.  Certainly the implications of policy in this pandemic are constantly in the news, and how appropriate to begin the process of analysis. 

Abstracts of 500 words are due by June 15, 2020.  Full papers of between 8,000 and 10,000 words are due by September 30, 2020.

Topics may include but are not limited to:

• Risk assessment, Ageism, Legislation to protect older adults,
• Community initiatives, Medical and nursing perspectives,
• Mental health challenges for elders, Family support or conflict,
• Helping and volunteering, Rationing of care, Challenges for caregivers

Authors should send their Vita and a 500 word abstract related to their paper by June 15 to Managing Assistant Editor, Kaitlyn Langendoerfer.  Details available here. 

The ever-busy Naomi is a member of the Editorial Board for the Journal.  Thank you for letting us know about this opportunity, Naomi!

End-of-Life Decisions and Technology, Especially Ventilators

At Dickinson Law, in the last third of the Spring 2020 Semester, my Elder Law students are doing a module on End-of-Life Decisions.  I had planned this module more than a year in advance; certainly the timing has proven to be uniquely relevant.  Originally, my plan was for an in-depth discussion about choices related to assisted death, sometimes known as the Death with Dignity or Physician-Assisted Death.  And we are considering comparative studies and positions on legislation intended to support this choice, starting with a review of Oregon's more than 20 years of experience in providing this option.  

The COVID-19 pandemic, however, is triggering new focal points on end-of-life decisions.  Consider for example the statement by an emergency room chief in a San Francisco hospital, as quoted recently in the Los Angeles Times, "You have an 80-year-old and a 20-year-old and both need a vent and you only have one.  What do you do?"  Individuals may have thoughtfully made advance decisions about whether they want mechanical assistance in breathing during life-or-death circumstances.  They may have appointed an agent to speak for them or created written directions via living wills, DNR orders, or POLST documents.  But it is one thing to make you own decision; it is another to have the "decision" made because of lack of what is arguably baseline equipment.  

I've been particularly interested in the history behind ventilator shortages as reported by The New York Times.  

Thirteen years ago, a group of U.S. public health officials came up with a plan to address what they regarded as one of the medical system’s crucial vulnerabilities: a shortage of ventilators. The breathing-assistance machines tended to be bulky, expensive and limited in number. The plan was to build a large fleet of inexpensive portable devices to deploy in a flu pandemic or another crisis.

 

Money was budgeted. A federal contract was signed. Work got underway.

 

And then things suddenly veered off course. A multibillion-dollar maker of medical devices bought the small California company that had been hired to design the new machines. The project ultimately produced zero ventilators.

The rest of the story reads like a detective tale.  The small California-based company was proposing a new generation of easy-to-use, more cost effective, mobile ventilators.  By 2012, the partners were on schedule to file for market approval in September 2013, paving the path for production.  However, in May 2012, a much large medical device manufacturer bought the California-based company for just over $100 million.  Good news? That larger company might have especially strong resources for speedy production, right?

The new owner, Covidien, already made ventilators -- at a higher cost -- and in 2014, reportedly told federal officials they wanted to get out of the new ventilator contract.  The federal government agreed to cancel the contract. Covidien was sold to an even larger international company in 2015.

Why?  For more, read "The U.S. Tried to Build a New Fleet of Ventilators.  The Mission Failed," by Nicholas Kulish, Sarah Kliff and Jessica Silver-Greenberg, published in the NY Times on March 29 2020 and updated on March 31, 2020.  Or catch a NY Times podcast that looks further into shortages of hospital rooms, COVID-19 testing supplies and ventilator availability.  All interesting -- especially if you are talking about "end-of- life decisions."