Elder Law Prof Blog

ABA House of Delegates Resolution on Guardianship Courts

At the recent annual meeting, the ABA House of Delegates Urges Congress to Invest in a Guardianship Court Improvement Program.

A Guardianship Court Improvement Program will provide states with the necessary federal
funding and support to improve their court processes and thus the lives of individuals with
guardians by improving outcomes for adults in the system, increasing the use of less restrictive options other than guardianship, and enhancing collaboration among courts, the legal system, and aging and disability networks.

The report, along with the proposed resolution, is available here. The final resolution reads as follows:

RESOLVED, That the American Bar Association urges Congress to create and fund a Guardianship Court Improvement Program for adult guardianship (following the model of
the State Court Improvement Program for child welfare agencies created in 1993) to
support state court efforts to improve the legal process in the adult guardianship system, improve outcomes for adults subject to or potentially subject to guardianship, increase the use of less restrictive options than guardianship, and enhance collaboration among courts, the legal system, and the aging and disability networks.

Interesting Reactions to a Standard Question for Mini-Mental Exams: Who is the President?

As most of us who have accompanied an elderly parent to a doctor are aware, standard questions in most mini-mental exams include asking the individual to identify the day of the week and the date, and to name the president of the United States.  During my mother's physical decline after age 90, she was watching cable news programs obsessively and we later joked that we should have paid more attention to her when she insisted during the summer of 2016 that the "polls predicting Hillary Clinton's election are wrong."  After the election, when asked to identify the president, she would cast a rueful gaze on the questioner and make it clear she both knew who it was and whether she approved.

But apparently there is a much deeper history to older persons' responses.  Without getting too political about my selection here, the history can be summarized in one report from a recent twitter feed:

"I work as a Paramedic and often one of my questions for patients to determine cog is to ask who the president is.. The replies I get are often correct and almost always followed up with interesting adjectives. I've been doing this 26 years and only last few [have] been that way."

Some of the other comments involve more poignant humor, but, still, interesting!  Can you get "extra credit" points on a mini-mental exam? 

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.  

NYT: "Detecting" the Reasons for a Death in Nursing Home

From a sad, powerful story about one of many deaths at Isabella Geriatric Center, carried in the New York Times:

A little after 1 in the afternoon, Aida Pabey got the call from the nursing home: Her mother was not going to make it. It was April 6, nearly four weeks after the state had barred all visitors to nursing homes, and Aida and her sister, Haydee, had been struggling to get even the most basic information about their mother. Was she eating? Had the coronavirus reached her part of the home?

 

Now this dire call. Just the day before, the sisters had been assured by an aide that their mother was “fine.”

 

They were both detectives in the New York Police Department, 20-year veterans. They were used to getting information, even from people determined to withhold it. But the nursing home had been a black box.

 

They raced to the home. Haydee got there first and managed to get upstairs. Aida, arriving second, identified herself as a crime scene investigator and brought safety gear. “I had my face shield, my bootees, my mask, my gloves,” she said. The security guard refused to let her in. “No. It was, ‘No way.’”

For more read, When Their Mother Died at a Nursing Home, 2 Detectives Wanted Answer.  As one of our Blog's readers has commented recently, "we need to go a step deeper to the ROOT cause of these serious breaches of safe practices in care facilities."

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.  

 

 

Elder Abuse in the Time of COVID

A reporter recently asked me whether I'd been hearing about an uptick in elder abuse cases during the pandemic. So I was interested in the release of this research letter, Elder Abuse in the COVID-19 Era.

Consider this: "[t]he many necessary social distancing programs currently in place additionally create a growing dependency on others for the completion of daily living activities, and this dependency can be viewed as another vulnerability. The documented negative health effects of social isolation and loneliness in old age will undoubtedly intensify during this pandemic, and social isolation has been established as one of the strongest predictors of elder abuse."

Add to that the following:

With numerous “shelter-in-place” orders in effect to promote social distancing during the COVID-19 era, and increased dependency of older adults on others, the potential for elder abuse is all the more heightened, particularly since perpetrators of abuse are often close relations, and as more strangers opportunistically strive to take advantage of the fearful situation to exploit older adults for financial gain. Older adults with dementing illness are known to be of higher risk for abuse and neglect. With the shuttering of adult daycare programs, senior centers, and outpatient programs occurring concomitantly with adult children working from home, the possibility of unbuffered time together may contribute to circumstances leading to greater incidents of abuse.(citations omitted)

The authors offer suggestions to minimize the potential for instances of elder abuse in the time of COVID-19, which need to be

proactively addressed with organized, systematic, and creative efforts. Older adults within families and local communities can be contacted on a regular basis by those who are designated as advocates. Multiple communication methods can be leveraged for this purpose, ...  Creativity in the development of resources to address specific vulnerabilities should be encouraged. …

Ways to address the potential threat of a trusted other range from increasing penalties for elder abuse at the societal level to the creation of an individualized safety plan that incorporates the wishes and preferences for autonomy and self-reliance of the older adult. Caregivers of older adults with dementia or other medical conditions … should be offered additional means of support and guidance. To combat rampant and increasing ageism, the perspective of older adults can be elevated by increasing representation on panels with significant decision-making power in public and private sectors during the pandemic. Those who have a substantial social media footprint can be of particular help combating ageist sentiments. Creative community-based resources that address any of these three intersecting domains of elder abuse must be rapidly developed and implemented. ….

Many Organizations Collaborating to Seek Better Protections for SNF Residents

A number of national and state organizations on aging have written a letter to CMS, seeking changes in regulations to increase the care and protection of residents of SNFs.

Forty-five national and state organizations, including Consumer Voice, signed on to a letter that was sent today to the Centers for Medicare & Medicaid Services (CMS) Administrator.  The letter advocates for better protections for nursing home residents and better support of residents' ability to make decisions about their health care and place of residence.

The organizations call for immediate action by CMS and make six recommendations, including:   

1. Requiring immediate full disclosure of COVID-19 outbreaks by nursing facilities.

2. Setting higher standards for the necessary staff, training, and equipment to care for residents with COVID-19 and those without. 

3. Increasing staff assistance to facilitate communication between residents and their families.

4. Requiring facilities and states to work collaboratively with residents and their families when making transfers designed to “cohort” residents with others who also are COVID-positive or COVID-negative.  

5. Guaranteeing a resident’s right to return to the facility, if desired, and facilitating access to Medicaid home and community-based services.  

6. Protecting resident access to Medicaid by requiring all federally-certified facilities to be 100% Medicaid-certified during this emergency. 

The entire letter is available here.

Pandemic Isolation Complications: When Old Scams Become New Again?

Recently a friend of mine, in her 90s, asked me if I had ever heard of a particular company, one well known for its direct mail campaigns.  When she said that name, I recognized it as one that often focuses on magazine subscriptions with discounted prices, with a hefty dose of possible  "prizes" on the side.  I responded affirmatively and explained how I had tried to help a woman years ago who had become caught up in a cycle of purchases and "prizes" that left me with the firm opinion the real business of this company was preying upon people, tempting them with offers of  "rewards" into spending more and more money on items of little to no value. 

I thought that was the end of the matter.

Two weeks later, my friend asked again if I'd heard of that particular company.  This time I responded, "why are you asking?"  She explained she had filled out some kind of form or game card, to qualify for some kind of prize, and that she had bought a couple of items to have, in her words, a better chance to qualify for the prize.  She explained the form was fun and a bit of a "good mental challenge" -- requiring her to match questions and answers from different columns and paste stickers into the correct slots.  She mailed in the completed form. She was pleased when she received notification by mail that she had "won" a prize.  She eagerly called what she thought was a "toll free number" to claim her prize (I'd be curious about what her phone bill eventually shows about that call). 

When she made the call, a "nice woman" on the phone asked her to re-verify her identity and her award number, and her address and phone numbers, plus certain other personal details.  The woman announced the good news, that my friend had actually won two prizes with her submission.  

And then the true game began.  The "nice woman" on the phone asked my friend for her credit card or banking information (my friend couldn't quite remember which) so that the company could make a "direct deposit" of her prize.  

Fortunately, that is when my friend fully appreciated it was a scam.  She hung up.  

I worry, of course, that my friend's name and other information are now part of a new mailing list, that can be used again and again or sold by that company, as a possible "mark" for an even less principled predator.  

We talked about why she had taken the chance.  This woman has been a sophisticated business woman for most of her life, and no one would suggest to her that she has any sign of cognitive impairment, other than, perhaps, being a bit forgetful.  But she had been living in isolation for weeks, unable to be with other members of her extended family in real time because of health issues in the family, and she wanted something "to do."  She initially felt a bit of pride in being able to figure out what she thought was the trick to the game, resulting in her "win." 

I wonder how often this scenario -- or a more modern computerized or cellphone variation -- is playing out during the pandemic.  

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

 

Transparency Issues in Long-Term Care: The Potential for Misuse of Confidentiality Policies to Hide Infection Facts from the Public

Recently I was talking with a friend in another state who is the director of an assisted living facility that largely serves older adults who have significant risks factors.  I asked, "Have you had any residents or staff members that have tested positive for COVID-19?"  I asked her directly, because there was no way to know the answer to that question from public websites, either in her state or on a national basis.  The good news was that her facility had had no such diagnoses, either among staff or residents.  I also asked what she felt was key to avoiding infections, and we talked about the rates uncovered in other facilities in her own state.  She said bluntly, "We learned from our experience with influenza the last two years that we had to make real changes, and we did so before the COVID-19 was a reality and doubled down when we started hearing about the coronavirus." 

Internal infections have long-been a documented problem in residential care settings, and certainly not limited to so-called "nursing homes."  Contributing factors include residents who may have physical or mental conditions that make self-protection difficult and perhaps impossible.  My sister and I used to struggle mightily with a family member whose dementia interfered with the simple task of hand-washing -- even though this same person was the one who taught us the importance of soap and water from the time we were small children. It is perhaps ironic to recall that as a horse-mad girl I had tried to persuade both of my parents that there should be an exception for "barn dirt," on my theory that horse-related dirt was "clean dirt."  My mothers still insisted I undress on the back porch and wash thoroughly before coming in for dinner.  Wise woman, one who was quick to dismiss utter nonsense.

Fast forward decades and every day I hear new arguments regarding why facilities that have experienced life-threatening infections should not be required to report this in a public venue.  The most problematic argument is one that says an individual's infection is confidential medical information that prevents the facility from reporting statistical information, and thus an infection cannot be made public.  I've seen arguments about federal or state record-keeping policies such as HIPPA privacy rules or Pennsylvania's confidentiality rules  as the rationalization.  I think I know what my mother would call this kind of argument.

Syracuse Law Professor Nina Kohn tackles the history of mishandled safeguards against infections in long-term care with an Op-Ed for The Hill. In "Addressing the Crisis in Long-Term Care Facilities," Professor Kohn  points to specific actions at the federal level that have weakened, rather than strengthened, potential safeguards.   She makes five specific recommendations, including prohibitions on staff working in more than one-long-term care facility, to reduce cross-contamination, and the need for family members and others to make it clear that we "are paying attention to what is happening."  She reminds us:  "Those who are health care agents for nursing home residents should not be afraid to request access to medical records, as federal law entitles them to do, if facilities are not forthcoming with information about the care being provided."

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!

How COVID-19 is Revealing a Transparency Dilemma in Long-Term Care

My students at Dickinson Law often suggest important law and aging issues to explore and certainly the COVID-19 crisis is a daily source of topics.  High on the list in my students' minds have been the tragic stories connected to diagnosis and prognosis of the disease in "nursing homes."  Sometimes it is hard to even keep up with the stories.  Consider these headlines from the last few weeks:

• NYT on March 21, 2020:  The Coronavirus's Rampage Through a Suburban Nursing Home (in Washington State)
• NBC News on April 1, 2020:  Nursing Homes Overwhelmed by Coronavirus: 'It Is Impossible for Us to Stop the Spread" (focusing mostly on New York State)
• NYT on April 3, 2020: Coronavirus Sweeps Through a San Antonio Nursing Home (focusing on several facilities in Texas)
• Time on April 16, 2020: 18 Bodies Found Crammed Into Makeshift Morgue After Coronavirus Deaths Overwhelm New Jersey Nursing Home 

When my sister and I first realized that the novel coronavirus was likely to have a devastating impact on anyone with a compromised immune system, we quietly and sadly acknowledged our minor relief that our parents, who had both experienced dementia in the final months before their deaths, were spared at least this particular situation.   My sister went further and said, "If this had happened while Mom or Dad were still alive, I would have quit my job to apply for a job in their living center.  I wouldn't have been able to live with being forced to stay away, in essence abandoning them."

Anyone who knows my sister would know that would have been her heartfelt plan.  But it was also a reminder of something we knew so well from our experiences.  Even the very best of care settings -- whether in the individual's home, in assisted living, in supported independent living (such as in a CCRC), or in a skilled nursing facility -- need a loved-one's involvement.  On the one hand, the cared-for individual "lights up" when they see a family member arrive, even if the visit is just for a few minutes and even if the older person cannot quite remember the identity of the visitor.  No activity-based care program can entirely reproduce that positive impact.

But even the best facility also benefits from having the eyes and ears of family members to observe and make appropriate reports about concerns.  On my last sabbatical,  I stayed in Arizona to be near both of my parents, in their 90s.  Mom was still in the family home and Dad was in a truly caring, small, personal and well-staffed dementia care center.  One day I arrived to find my father deeply upset.  He said "I can't find my room."  I was worried that this meant his cognition had taken another turn for the worse. But, when I offered to walk him from his favorite outdoor bench to his room, it turned out he was right.  Everything that was once his -- his favorite chair, his clothes, his photographs -- were gone from his room.  I found out they were on their way to a different cottage.  More distressing, it was a cottage for individuals who no longer left their rooms -- and that wasn't my father's profile at all.  Suffice it to say, that "move" was reversed.  

That's a small example.  But when a pandemic means that family members cannot visit at all -- the opportunities for confusion and short cuts can increase in any care setting.  I don't know what the solution is; but I do know that the need for transparency in care, and for family members to feel welcome every day in every care setting, are important to quality of care.  And, of course, to quality of life for everyone.  

I'm hopeful that the COVID-19 pandemic will stimulate creativity and identify new ways of safely maintaining relationships for frail elders or others with delicate health profiles, while also still taking appropriate precautions to reduce the potential for high rates of cross-contamination and infection, including infections that cross the borders of the setting.  On my father's last full day, before a nighttime stroke left him in a coma, he and I had lunch together, we walked in the sunshine, and he had his favorite ice cream for a snack.  How I would hate to think of others missing such opportunities.  

In Memory of Lori Stiegel

Lori Stiegel, a tireless and lifelong champion of elder justice, died a few days ago.  She educated and advocated during her professional career for the rights of elders and was one of the foremost authorities on elder abuse. She was also my friend.  We are all better off for her having been in our lives.  We miss you Lori.

Elders Struggle In Isolation Without Community Gathering Points

The New York Times has also addressed the topic of social isolation from the standpoint of what happens when the senior centers and other agencies close during the pandemic.  ‘I’m Really Isolated Now’: When Elders Have to Fight Coronavirus Alone explores this, "[t]he shutdown of community centers means enforced solitude and a loss of structure."  These gathering points go by many names, senior center, activity center, community center, neighborhood center, but they all have something in common-a place for an elder to go---to get a meal, to get information, to get services, to get referrals and to socialize. "For 30,000 elders each day, senior centers were an outlet from their homes. And now, by order of the mayor, all on-site activities are closed, though the centers can still provide meals to go."  There's a catch-22 at play here:

It is a terrible irony of the virus: that for older adults, steps to prevent the spread of Covid-19 increase the risks of social isolation, which carries its own devastating health effects. A study by the AARP compared the effects of prolonged isolation to those of smoking 15 cigarettes a day.

Normally programs for elders aim to increase human contact. Now that contact is potentially deadly.

In many instances, this results in a feeling of loss of control, according to the article.  Social engagement, the provision of clear and accurate information  is a plus while " alarmist news programs, on the other hand, can make people feel helpless."

Keep an eye out on your relatives and neighbors. Let them know they aren't alone in this-even if it's  just waving to them across back yards.

 

Latest Issue of BIOFOCAL, Publication of ABA- COLA

The latest issue of Biofocal, the publication of the ABA Commission on Law & Aging (COLA) has been released. Volume 41, Issue 4 is available here and features 5 new articles:

1. Using Technology to Track, Manage Guardians in PA

2. When Nursing Home Care is Denied

3. Civil Recovery in Elder Financial Exploitation Cases

4. Nursing Homes Restrict Visitors Amid the Coronavirus Outbreak

5. Speaking for the Dying

Archives and a searchable option by article is available here.

Worried You Will End Up With Dementia? You Aren't Alone.

A couple of weeks back, the New York Times ran a story that I suspect rings true for many of us. Stalked by the Fear That Dementia Is Stalking You discusses the reaction many of us have when we forget something-whether a name or the location of our keys.

"Many people ... who’ve watched this cruel illness destroy a family member, dread the prospect that they, too, might become demented. The lack of a cure or effective treatments only adds to the anxiety. It seems a common refrain, the news that another treatment to stop Alzheimer’s has failed."  The article discusses the tests that screen for the disease and the wisdom of getting tested when someone from your family had the disease. After discussing the various testing methods, the article reviews recommendations from the experts. "Several experts recommend that people concerned about their Alzheimer’s risk get a baseline set of neuropsychological tests, followed by repeat tests if and when they start experiencing worrisome symptoms."  Others suggest "physical inactivity, hearing loss, depression, obesity, hypertension, smoking, social isolation, diabetes and low education levels raise the risk of dementia. All of these factors are modifiable." 

When there is no cure (yet) would you rather know, or not?

Forgetfulness is Not Just for the Old

I always talk with my students about memory loss and what it might signal--but always when we talk about memory loss, or for them, forgetfulness, every one of them has experienced an episode of forgetfulness, whether misplacing their phones or losing their keys.   I was pleased to read a recent editorial in the New York Times by neuroscientist, Daniel J. Levitin.   Everyone Knows Memory Fails as You Age. But  Everyone Is Wrong.

Short-term memory contains the contents of your thoughts right now, including what you intend to do in the next few seconds. It’s doing some mental arithmetic, thinking about what you’ll say next in a conversation or walking to the hall closet with the intention of getting a pair of gloves.

Short-term memory is easily disturbed or disrupted. It depends on your actively paying attention to the items that are in the “next thing to do” file in your mind. You do this by thinking about them, perhaps repeating them over and over again (“I’m going to the closet to get gloves”). But any distraction — a new thought, someone asking you a question, the telephone ringing — can disrupt short-term memory. Our ability to automatically restore the contents of the short-term memory declines slightly with every decade after 30.

Given that everyone has forgetfulness, the author's next point is important:

The relevant difference is not age but rather how we describe these events, the stories we tell ourselves about them. Twenty-year-olds don’t think, “Oh dear, this must be early-onset Alzheimer’s.” They think, “I’ve got a lot on my plate right now” or “I really need to get more than four hours of sleep.” The 70-year-old observes these same events and worries about her brain health. This is not to say that Alzheimer’s- and dementia-related memory impairments are fiction — they are very real — but every lapse of short-term memory doesn’t necessarily indicate a biological disorder.

So, why might we focus on this with elders?  The author suggests elders have more memories to get through-it's going to take more time to remember a specific and generally it may take older folks a bit longer to remember things. 

This is a very interesting article that I plan to reference when I'm discussing issues regarding memory loss and dementia with my students.