Elder Law Prof Blog

Lucidity for Persons Living with Advanced Dementia, from the Perspective of Caregivers

I've been working on an article examining lucidity in persons diagnosed as having some form of dementia.  My analysis has been largely focusing on the implications of lucid intervals for attorneys, including those involved in advising on estate planning and care-related needs.  This has helped me to tap into other ways of thinking about lucidity and most recently I read an article in The Gerontologist, titled "Caregiver Accounts of Lucid Episodes in Persons with Advanced Dementia," published in June 2024, by a research team lead by Jason Karlawish, M.D. at the University of Pennsylvania.  

The article begins with careful look at definitions used in a research study that relied in major part on telephone interviews with caregivers.  For example, threshold questions for the caregivers were whether they had observed or were aware of "any unusually lucid moments" during the most recent four months (or during the final for months of a person's life if they were no longer alive). This approach was to isolate a concept known to the researchers as "paradoxical lucidity."  The working definition for paradoxical lucidity, from a 2019 National Institute on Aging Study, was "unexpected, spontaneous, meaningful, and relevant communication or connectedness in a patient who is assumed to have permanently lost the capacity for coherent verbal or behavioral interaction due to a progressive and pathophysiologic dementing process."  Eventually the study focused on 30 caregivers (and a corresponding 29 individuals with advanced dementia).  All of the final participants were "family caregivers."

There is a lot to unpack in the findings.  Although the length of the lucid moments for a given individual were usually very short -- and the longest was just 45 minutes -- the incidence of such moments across the study population was  frequent.  The findings combined with other empirical studies, lead the researchers to "question the 'paradoxical' in 'paradoxical lucidity.' Here, 'paradoxical' denotes an observation that is inconsistent with disease theory."  The researchers suggested there may be a need to "modify the theory of disease" for "severe-stage dementia."  

The study's caregiver-participants uniformly reported that "witnessing a lucid episode did not influence decisions about medical care."  However, these researchers "found that lucid episodes affected approaches to daily care, shaping, for example how often they brought the person living with dementia into social situations, diet, and sleep schedules."  The article continued:

"Such changes are substantive and important but not framed by caregivers as critical decisions  They are alterations in what might be called the 'ordinary ethics' [citation] of caregiving, evincing shifted understandings of what constitute good care."  

Certainly this study is not being used to talk about legal implications of lucid moments.  That is important too.  

Case Western Reserve Hosts Law-Med Conference on Diminished Capacity and the Law

Law and Bioethics Professor Sharona Hoffman, Co-Director of the Law-Medicine Center at Case Western Reserve University organized a terrific symposium on Cognitive Decline and the Law, held on March 1, 2024.  Thank you, Sharona, for inviting me to participate!   

In my talk, I  suggested that the time has come for clearer thinking on a long-standing legal standard, known in many jurisdictions as the "Lucid Moment" or the "Lucid Interval Doctrine," that has permitted attorneys' testimony on clients' orientation in time, place and person to suffice as evidence of sufficient capacity in legal transactions, even in the face of expert medical testimony about Alzheimer's Disease or other advanced dementias. Research demonstrates that Canadian academics have been  questioning reliance on "lucid intervals in dementia" as early as 2015.  My additional thanks to Penn State Dickinson Law student and research assistant extraordinaire, Noah Yeagley, for joining us at the conference and who was especially enjoying this conference opportunity to revisit his pre-law school graduate work in neuroscience.

The day began with a keynote presentation by Dr. Carol Barnes, University of Arizona, addressing "Brain Mechanisms Responsible for Cognitive Decline in Aging."  One key takeaway for me from her presentation was that while physical exercise is important for overall health, "learning new things" is probably even more important in maintaining cognitive function over time.  

The first set of panelists dug deeply into the roles of people supporting others in decision-making, whether with the aid of formal "supported decision-making agreements" and use of powers of attorney or different forms of substituted judgment.  Rebekah Diller, Clinical Professor at Cardozo Law, Megan Wright, Professor of Law and Medicine at Penn State Law, and James Toomey, Assistant Professor of Law at Pace University were the presenters on cutting-edge issues.

In the second panel, Neurology Professor Mark Fisher from the University of California Irvine was very timely in his focus on the potential for cognitive decline in both voters and candidates in politics, discussing a wide range of possible examples across history in the U.S. and Israel.  Associate Professor Jalayne Arias from Georgia State University School of Public Health demonstrated significant concerns in the overlap between criminality and dementia, whether from the standpoint of arrest, conviction, incarceration, or release of persons with cognitive declines.

Sharona Hoffman did double duty during the packed day, presenting issues of cognitive declines both in the workplace and on our roads.   She used humor to soften some of the tough news on the lack accountability for risk in either domain.  It was clear from the audience response -- in both the sold-out auditorium and on-line -- that everyone has a story about dementia and drivers, often from our own families.

My long-time friend working specifically in the "elder law" space, Nina Kohn, Professor of Law at Syracuse and now also a Distinguished Scholar in Elder Law at Yale Law School, gave the latest on proposed -- and much needed -- reforms in court-appointed guardianships, highlighting key concerns addressed in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act,  adopted as of today in two states, Maine and Washington, and introduced or pending in at least four more states.

The speakers in the important last panel of the day were clearly looking to the future on research and developments in the diagnosis, care and community response needed for "healthier" approaches to problem-solving.  Dr. Jonathan Haines, a genetic epidemiologist at Case Western Reserve University, surveyed the advances and challenges in attempting to build a deep bank of genetic information on Alzheimer's Disease. Law Professor Emily Murphy at UC Law San Francisco outlined the emerging theory of "collective cognitive capacity" as an approach to the challenges posed by social, environmental, and economic factors that may be impacted by brain health and cognitive decline.  Tara Sklar, the Director of the Health Law and Policy Program for the University of Arizona College of Law spoke on the potentials and challenges for telemedicine in treating patients with cognitive declines. Professor Sklar is also the new chair of the AALS Section on Aging and the Law.  

A packed day, for sure, with support from Virginia Lefever, Editor for CWLR's journal of law and medicine, Health Matrix, who was receiving formal drafts of papers 
from presenters for a future issue.

And for those of us who were determined to follow Dr. Barnes' encouragement to "keep learning," the evening did not end early, as we continued with a tour of the University's wonderful public art spaces and then on to the world-renowned art collections at the Cleveland Museum of Art -- including a "First Friday" party that had lots of people dressed up and dancing!  "Hands"-Down, it was a great conference!

NYT's Ethicist: "My Friend is Trapped in a Nursing Home. What Can I Do?"

The New York Times runs a regular column called The Ethicist.  It poses intriguing problems and the most recent one is definitely relevant to families, older individuals (and potentially anyone with a disability) and elder law attorneys.  Because the analysis is behind a paywall for "subscribers only," I am reluctant to say too much here  But I can say that the question of what happens when someone with "reduced" cognitiion becomes entangled in a well-meaning but still demeaning care setting, makes the need for experienced legal assistance exceptionally clear. This particular essay would make a great problem for  a student seminar!  

See My Friend Is Trapped in a Nursing Home:   What Can I Do?  presented by columnist Kwame Anthony Appiah, in the New York Times online edition published July 28, 2023.  

Arizona Feature: "Arizona Seniors At Risk of Harm"

Appearing on the front page of the Sunday edition of the Arizona Republic (5.21.23),  the first paragraphs of an extended feature article point to the potential for harm to residents and the consequences of staff shortages or inattention at Arizona facilicities caring for residents with dementia. Two women in their 90s  are residents of an elegantly appointed assisted living facility-- but as the article begins they are covered in blood -- and the investigation of what happened there is hampered by the inability of anyone to give clear explanations. 

The feature, based on the newspaper's review of "thousands of pages of police and state regulatory reports," offers multiple reasons for such injuries in "senior living" facilities, including a lack of clear reporting rules and the absence of investigation by state agencies, especially for facilities licsenced for "assisted living" as opposed to "nursing home" care.  From the  feature:

In memory care units, anything can become a weapon -- toilet plungers, shoehorns, electric razors, TV remotes, metal trash grabbers and walking canes. Hundreds of vulnerable seniors, particularly those with dementia, contend with violence at the end of their lives in the very places that promise to keep them safe. 

 

Shortages of staff-- brought on by companies looking to maximize profits or stave off financial losses -- lead to more harm. Assisted living facilities can keep resident clashes underwraps [in Arizona] because regulartors don't make facilities report incidents to their state licensing agency.  Federally regulated nursing homes have to report but little attention is paid to the problem.

 

The Arizona Republic combed through thousands of pages of policce and state regulatory reports to find more than 200 clashes at senior living facilities from mid-2019 to mid-2022. Residents punched, hit, pushed, kicked, poked scratched, bit, elbowed or spat on other residents or employees.

Experts consulted by the Arizona Republic noted that one "key [to reducing problems] is tailoring a [resident's] care plan to each resident's needs, equipped with activities that bring their lives a sense of purpose."  Further, "[a]ssisted living facilities commonly get in trouble for having inadequate, delayed or out-of-date plans for residents that outline their need or for failing to follow those plans."

The article cautions that if a problem is not tracked, "it doesn't exist":

The Arizona Department of Health Services licenses facilities and is responsible for investigating complaints but assisted living centers don't have to report nonfatal injuries to the agency.  

 

That's not normal.  Most states require facilities to report to their licensing agency when residents get hurt, according to The Republic's review of state laws.

The feature suggests that "Arizona lawmakers and regulators have prioritized the needs of assisted living and nursing home companies over their residents," comparizing Arizona to  "[a]t least 17 states [that] require assisted living facilities to get inspected about once a year, with a few even requiring two inspections per year. " 

For the full Arizona Republic feature published in its print version on May 21, 2023, look for  "Arizona seniors at risk of harm: Facilities experiencing staff shortage, residents with dementia enable violence," by reporters Caitlin McGlade, Melina Walling and Sahana Jayaraman. The extended Sunday feature appears to follow several shorter articles available online in May from the same reporting team. 

Signficant Article from NY Times

This is one of the most important and comprehensive articles I've read on dementia, consent, elder abuse, and guardianship.  

The Mother Who Changed: A Story of Dementia was published on May 9, 2023.  I plan to assign it to my students.  I hope you read it.

Ohio Appellate Court Confirms that Agent Not "Personally Liable" for Costs of Nursing Home Care

In one of the earliest articles I wrote on familiy member liability under nursing home contracts, I cautioned that federal law prohibits nursing homes from requiring "guarantees" of payment by family members.  Any family member who is asked to sign "on behalf" of a loved one should carefully consider the role he or she is undertaking, especially if the only role acceptable  and affordable for that family member is "agent."  See "The Responsible Thing to Do About 'Responsible Party' Provisions in Nursing Home Agreements," published in 2004 in the Unversity of Michigan Journal of Law Reform.   

On May 1, 2023, an appellate court in Ohio cited this article when concluding that in the case before it, the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care.  The daughter appears to have properly cooperated or assisted in the original Medicaid application.  Further, the daughter gave authority to the nursing home to debit the bank account where her mother's SS checks were deposited each month, in order to pay itself the "patient pay portion" of the monthly allocation for costs of care when a patient has low income but is otherwise eligible for Medicaid.  Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000, a resource limit that can trigger disruption of  Medicaid benefits.  There was still another party that could be faulted for what appears to have been an unplanned "excess resource" situation.  The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminaating Medicaid.   See National Church Residences First Community Village v. Kessler, 2023 WL 3162188  (Ohio Ct. App. 2023).  

Bottom line?  Family members or others attempting to help an incapacitated person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligability for Medicaid.  Further, clear, direct communications between the agent, the facility and state agencies are important when seeking to facilitate prompt, proper payments.  

Overwhelmed family members should not be scapegoats, even (especially?) when overwhelmed state agencies and facility billing offices are themselves missing opportunities to keep benefit payments flowing properly.  

San Diego Expands its Pilot Program for Alzheimer's Response

As described in The San Diego Union-Tribune, San Diego's Alzheimer' Response pilot program, launched in 2018  for the "East County," is a success, helping the public in better addressing people coping with Alzheiemer's Disease or other dementias.  The Alzheimer's Response Team (or ART) now covers the full San Diego region, with help from $1.5 milliion in funding and a staff of  10.5 full time employees.   Originally the program collaborated with an outside nonprofit organization, but "the county now provides its dementia training in-house."

Concerned family members have the option of asking for ART services, often as a way to avoid having problematic episodes escalate.  The article, published online on 3/27/2023 explains: 

ART focuses on two aspects of dementia care: crisis response and crisis prevention. To better respond to emergency calls related to dementia, law enforcement agents, first responders, social workers and mental health clinicians receive training on how neurodegenerative diseases like Alzheimer’s impact someone’s behavior.

 

That training helps first responders better recognize the symptoms of dementia during emergency calls. They can then call in the ART specialists to work with the person in distress and provide in-home services for clients living with dementia and their family caregivers.

 

Eugenia Welch — president and CEO for Alzheimer’s San Diego, which helped develop the initial programming — said the first responder training and specialized ART staff are key to the program’s success. Interacting with someone diagnosed with dementia, she added, is different than working with people who don’t have neurodegenerative disorders and “takes a unique skill.”

 

“I think by having the specialized team going out, they’re able to be more in tune to the services that are available for people living at home with dementia and able to more quickly connect people with those services to get them the support they need,” Welch said.

 

The ART staff may follow clients to provide support in order to prevent new crises, and to connect the families with local dementia care resources.  According to the article, while "Adult Protective Services Cases" are usually closed in a month, ART support services can continue for six months or longer.  "Staff check in with the client and their family regularly until ths situation is stablized before closing the case."

 

Family members or other concerned people can call 911 in the event of a serious situation developing and should "let disptachers know somoene in the home has either been diagnosed with dementia or is supsected to be living with the condition undiagnosed."  The article says that services can also be requested through the countys's Adult Protect Services Call number directly, rather than through 911.  

USA's Fastest-Growing Demographic Group? Consider the Implications of People Age 50+ Who Live Alone

The New York Times Sunday edition includes a feature article about a trend, "more older Americans living by themselves than ever before."  

Using graphs, interviews and research results, the article makes a clear argument, that "'while many people in their 50s and 60s thrive living solo, research is unequivocal that people aging alone experience worse physical and mental health outcomes and shorter life spans." 

Plus, the article implies that evidence that shows a growing share of older adults (age 55 plus) do not have children, means there is a public policy concern "about how elder care will be managed in the coming decades." 

For me, this article crystalizes two legal concepts I write about frequently:  "filial support" laws that can be used to compel adult children to care for or maintain their elders, and "continuing care retirement communities," that permit people with sufficient -- make that significantly sufficient -- financial resources to plan for how their care needs may be handled in a planned community.  

Law professors can probably use the article to stimulate waves of student projects about personal and collective responsibilities in American societies and beyond.  

For more, see  "As Gen X and Boomers Age, They Confront Living Alone," by Dana Goldstein and Robert Gebeloff. 

 

Loss of the Ability to Evaluate Risk vs "Winning the Sweepstakes"

When I was a child, my grandfather had an ongoing relationship with Readers' Digest.  Not just their magazine or their condensed books, but with the company itself. He was always convinced he had won their latest sweepstakes and his big-dollar prize was just around the corner.  It was a bit of a family legend.  

Recently an older friend, who had celebrated a 90th birthday a few months back, called to ask for help in filling out forms for the Publishers Clearing House sweepstakes.  Over the years my friend had purchased various items from PCH, including a set of solar lights that never worked properly.   The odds of actually "winning" the PCH sweepstakes are astronomically high.  My friend thought buying something would increase the odds of winning no matter how often I explained over the years that was not true.  Sometimes new "stuff" would appear in the mail, along with a corresponding bill for the "order."  It was hard to know whether my friend had actually ordered the items.

This time, my friend was thrilled to explain the long-awaited victory was almost here -- as the latest mailing "guaranteed" the check would be arriving by mail and all that was needed was timely confirmation by return mail of a willingness to accept the prize.  Two envelopes were provided to help in "claiming" the victory.  

I walked patiently through the colorful documents with my friend, pointing out all my examples of clever language.   I showed my friend a copy of a case, Harris v.  Publishers Clearing House, an unofficially reported  federal decision from 2016, that described another person who also thought he had won for the exact same reasons as my friend. The prize never came. He was suing -- without the benefit of an attorney --  for breach of contract, fraud, and alleged violations of Deceptive Mail Prevention and Enforcement Act, 39 U.S.C. Section 2001 et seq.  But the judge ruled against him, dismissing the case with prejudice while explaining the language in the letters "merely informed the plaintiff that he had a chance to win. . . . "  

My friend seemed to understand what I was saying.  My friend asked my opinion -- "what should we do?"  I suggested we tear up the letters and throw them in the trash.  My friend put the documents -- untorn -- in the waste can.  We talked about the fact that continuing to participate with this company was wasting money, and was also an example of "feeding the troll," encouraging the company to keep sending those "too-good-to-be-true" letters to other people.   We  ended our discussion with a good hug.

The next morning I stopped by to drop off newspapers and a fresh donut.  As I waited for my friend, I saw the top of two "official" envelopes addressed to Publishers Clearing House peeking out of the top of the home's mail box for pick up -- with fresh stamps.   I couldn't help but sigh.  

Here is a link to a science-based discussion about early assessment of cognitive impairment, and the importance of histories provided by a reliable informant or care partner for diagnostic assessment.  Victimization in scams is one of several behavioral examples listed in the article that can point to changes in cognition, associated with the loss of the ability to evaluate risk or odds of winning. 

Isn't it sad that it might be easier to diagnose cognitive impairment than to get a ruling finding deceptive trade practices?  

Register Now-Webinar on Guardianship Systems & Practices

The National Center on Law & Elder Rights has announced a webinar on Thursday September 22, 2022 at 3 eastern on Strengthening Rights & Ensuring Accountability in Guardianship Systems & Practice.   Here's a description

Improvements to state court adult guardianship systems can include the promotion of less restrictive options, strengthening rights, and ensuring accountability. Making significant changes in practice and systems requires the commitment of many parties, including courts and the legal, aging, and disability communities.

Join us for Part 1 of this training series to learn about models and promising practices to reform guardianship being implemented by three “highest state court” recipients of the ACL Elder Justice Innovations Guardianship Improvement grant program (Maryland, Minnesota, and Oregon).

This training will also preview Part Two of this series, which will focus on strategies for legal advocacy for proposed protected persons and protected persons.  

Presenters will share strategies they are implementing to:

1. Address diversion from, alternatives to, and revocation of guardianship;
2. Redress occurrence and risk of abuse, neglect, and exploitation in guardianship; and
3. Enhance the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship or conservatorship proceedings.

Speakers:

• Hilary Dalin, Office of Elder Justice and Adult Protective Services, Administration on Aging Administration for Community Living
• Nisa C. Subasinghe, Maryland Judiciary
• Jamie Majerus, Minnesota Judicial Branch
• Christian Hale, Oregon Judicial Department
• Jeffrey Petty, Oregon Judicial Department
• Jessica Brock, Indiana Legal Services

Closed captioning will be available on this webcast. A link with access to the captions will be shared through GoToWebinar’s chat box shortly before the webcast start time.

This training will be presented in a WEBCAST format to accommodate more participants. Due to the high volume of participants, computer audio will be the only option to listen to the presentation. No telephone call-in number will be provided. Please plan accordingly. Thank you. 

This webcast will be recorded and available on our website shortly after the presentation. The recording and training materials will also be emailed to all registrants within a few days after the training.

The webcast will take place on Thursday, September 22, 2022, at 12:00 p.m. P.T./3:00 p.m. ET and will run for 75 minutes.

To register, click here.

Planning for Your Special Needs Child and Retirement

The New York Times ran this article last week. Planning for Your Retirement, and for a Child’s Special Needs, All at Onceexplains "[f]or parents of children who have serious disabilities or special needs, the challenges of growing and preserving their wealth are magnified exponentially, and the stakes are much higher. While they are trying to plan for their own retirements, these parents need to simultaneously secure the ‌ stability of a son or daughter who will be dependent on them‌ until — and even  after — their deaths." The article does a good job of framing and discussing the issues and options and provides good examples.

Hearing Loss, Cataracts, and Dementia

There seem to be a lot of articles in the media currently discussing the statistical relationship between hearing loss and dementia.  Of course, we need to remember the axiom that "correlation does not necessarily mean causation."  Still, recent studies and informed observations are intriguing.  For example one study underway is looking at whether treating hearing loss can reduce the risk of cognitive decline.  

Johns Hopkins is leading a large National Institute on Aging study to see if hearing aids can safeguard seniors’ mental processes. The study has multiple locations and has recruited nearly 1,000 people ages 70–84 with hearing loss. One group is provided hearing aids, while another group receives aging education. By early 2023, the study should provide definitive results on whether treating hearing loss will reduce the risk of cognitive decline. In essence, we’ll know whether the use of hearing aids can potentially reduce brain aging and the risk of dementia.

Some of this research is going beyond examining the potential for common causes for the two processes (such as poor diet and inadequate exercise, as well as uncontrolled blood pressure or weight).  Researchers are asking whether a failure to hear clearly can actually damage the brain's function.  NPR's Sunday Edition (8.21.2022) includes  a five minute interview with Dr. Frank Lin, at John Hopkins Bloomberg School of Public Health, who addresses three "major brain mechanisms" that may be affected by untreated hearing impairments: (1) the potential impact of the load on a brain from having to work harder; (2) the potential for hearing loss to actually affect the integrity of the brain's structure  because of atrophy of an essential function, and (3) the potential for loss of hearing to contribute to social isolation, further reducing engagement that keeps people (and their brains) interacting with the world around them. 

Dr. Lin is also pleased about the FDA finally opening access for Americans to purchase over-the-counter hearing aids, a change he's worked on and supported for some eight years.  He points out that currently only some 15 to 20% of Americans who could benefit from hearing assistance are getting the help they need, probably because of high costs and reluctance to see doctors. Dr. Lin says that any theoretical risks from over-the-counter sales (such as over- or under-amplification) is significantly outweighed by the benefits. 

Oh, and while I'm at this, the research suggesting that older people who have cataracts removed may be "nearly 30% less likely to develop dementia" is also interesting.

Hearing Loss, Cataracts, and Dementia

There seem to be a lot of articles in the media currently discussing the statistical relationship between hearing loss and dementia.  Of course, we need to remember the axiom that "correlation does not necessarily mean causation."  Still, recent studies and informed observations are intriguing.  For example one study underway is looking at whether treating hearing loss can reduce the risk of cognitive decline.  

Johns Hopkins is leading a large National Institute on Aging study to see if hearing aids can safeguard seniors’ mental processes. The study has multiple locations and has recruited nearly 1,000 people ages 70–84 with hearing loss. One group is provided hearing aids, while another group receives aging education. By early 2023, the study should provide definitive results on whether treating hearing loss will reduce the risk of cognitive decline. In essence, we’ll know whether the use of hearing aids can potentially reduce brain aging and the risk of dementia.

Some of this research is going beyond examining the potential for common causes for the two processes (such as poor diet and inadequate exercise, as well as uncontrolled blood pressure or weight).  Researchers are asking whether a failure to hear clearly can actually damage the brain's function.  NPR's Sunday Edition (8.21.2022) includes  a five minute interview with Dr. Frank Lin, at John Hopkins Bloomberg School of Public Health, who addresses three "major brain mechanisms" that may be affected by untreated hearing impairments: (1) the potential impact of the load on a brain from having to work harder; (2) the potential for hearing loss to actually affect the integrity of the brain's structure  because of atrophy of an essential function, and (3) the potential for loss of hearing to contribute to social isolation, further reducing engagement that keeps people (and their brains) interacting with the world around them. 

Dr. Lin is also pleased about the FDA finally opening access for Americans to purchase over-the-counter hearing aids, a change he's worked on and supported for some eight years.  He points out that currently only some 15 to 20% of Americans who could benefit from hearing assistance are getting the help they need, probably because of high costs and reluctance to see doctors. Dr. Lin says that any theoretical risks from over-the-counter sales (such as over- or under-amplification) is significantly outweighed by the benefits. 

Oh, and while I'm at this, the research suggesting that older people who have cataracts removed may be "nearly 30% less likely to develop dementia" is also interesting.

Can We Hear You Now? FDA Gives Final Approval for Over-the-Counter Hearing Aid Sales

The Food and Drug Administration issued its final ruling today permitting over-the-counter sales of certain types of hearing aids. The ruling takes effect in 60 days. As FDA explains:

This action establishes a new category of over-the-counter (OTC) hearing aids, enabling consumers with perceived mild to moderate hearing impairment to purchase hearing aids directly from stores or online retailers without the need for a medical exam, prescription or a fitting adjustment by an audiologist. 

 

The rule is expected to lower the cost of hearings aids, furthering the Biden-Harris Administration’s goal of expanding access to high-quality health care and lowering health care costs for the American public. It is designed to assure the safety and effectiveness of OTC hearing aids, while fostering innovation and competition in the hearing aid technology marketplace. . . . 

 

Concurrently with issuing the final rule, the FDA also issued the final guidance, Regulatory Requirements for Hearing Aid Devices and Personal Sound Amplification Products (PSAPs), to clarify the differences between hearing aids, which are medical devices, and PSAPs, consumer products that help people with normal hearing amplify sounds.  

This could be "huge" for helping older adults.  I know that for many adults, not just the older adults I've worked with, it is terribly frustrating to be unable to hear properly.  Plus, I think that for some people, the ability to "try" a wider range of devices, without the time and expense of visiting specialized doctors, may facilitate "realism."   

At the same time, I worry that for some older adults, who actually are willing to see their hearing aid doctor, sometimes it was this doctor or specialist who caught the "real" problems, including the potential for mild cognitive impairment.  Could we miss those opportunities for more holistic health evaluations? 

 

Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id. 

Horse Therapy Provides Boost to Elders with Dementia

Ending the week on happy note due to this Washington Post article, A ‘magical’ treatment for seniors with dementia: Horse therapy.

Painting [on the horses] is not mandatory in this equine-assisted learning program, but it is one of the many ways participants are taught to engage with horses, with the goal of stimulating their minds and bodies. Since 2017, Simple Changes Therapeutic Riding Center in Mason Neck, Va., has teamed up with Goodwin Living, a senior living and health-care facility in Alexandria, to introduce residents with cognitive impairment and anxiety to the residents of its barn.

Up to six people at a time participate in the four-week sessions, which include horse identification, grooming, feeding, leading, discussing equine literature, poetry and haiku writing, and making horse treats. The collaboration began when Barbara Bolin, a social worker at Goodwin House Alexandria and a lifelong rider and horse owner, reached out to Corliss Wallingford, the nonprofit equine therapy organization’s executive director.

Read the article and look at the accompanying photos. Doing so will end your week with a smile.

Questions Arise About Validity of 2006 Alzheimer's Study?

Last month, Science magazine published an article, BLOTS ON A FIELD? A neuroscience image sleuth finds signs of fabrication in scores of Alzheimer’s articles, threatening a reigning theory of the disease.   One researcher recently noted that there were concerns about the 2006 study, including concerns about "image tampering"  There is no smoking gun and the article explains how this one expert became concerned. The article has technical materials in it, so read it and form your own opinion.

New Videos from Center for Elders & Courts

The Center for Elders and the Courts has released some new videos you will want to view. First is the Probate Court staff video series which

Provides information and tools for probate court staff that wish to implement more rigorous conservatorship and guardianship monitoring. The series emphasizes important aspects of case management, report tracking, responses to potential fraud and abuse, and financial monitoring, including comparing assets, expenses and budgets over time and highlighting common problem areas to look out for. Intended for courts across the country and thus necessarily general in nature, the videos are particularly helpful to courts that currently lack local training resources. A separate series of videos for conservators helps them understand their role and how to prevent misuse of resources.

Next is a series for conservators.

In this short five-part video series, [the National Center for State Courts] provides information and tools for those who are thinking about becoming a conservator or conservators who have already been appointed by a court. The series gives an overview of what conservatorships are, the conservator’s responsibilities and role in protecting assets, why courts monitor expenses, and which expenses are allowable. Intended for the public and courts across the country and thus necessarily general in nature, the videos are helpful as an additional training resource but do not replace specific requirements and guidelines set by the local court.

 

 

7th World Congress on Adult Capacity 2022

I have heard that the 7th World Congress on Adult Capacity 2022 was quite successful. I was excited to see that the conference organizers have published a link to download the various presentations.  The link is available here and then choose the presentations you wish to download.

When Was the Last Time You Had Your Eyes Checked?

You may be thinking to yourself, what does that have to do with elder law?  Well, read this article from the New York Times,  New Dementia Prevention Method May Be Behavioral, Not Prescribed. Here's the crux of the article: "[p]ublic health experts and researchers argue that it is past time to turn our attention to a different approach — focusing on eliminating a dozen or so already known risk factors, like untreated high blood pressure, hearing loss and smoking, rather than on an exorbitantly priced, whiz-bang new drug."  So now, about getting your eyes checked....

The latest modifiable risk factor was identified in a study of vision impairment in the United States that was published recently in JAMA Neurology. Using data from the Health and Retirement Study, the researchers estimated that about 62 percent of current dementia cases could have been prevented across risk factors and that 1.8 percent — about 100,000 cases — could have been prevented through healthy vision.

What other risk factors should we conside?

The influential Lancet Commission began leading the modifiable risk factor movement in 2017. A panel of doctors, epidemiologists and public health experts reviewed and analyzed hundreds of high-quality studies to identify nine risk factors accounting for much of the world’s dementia: high blood pressure, lower education levels, impaired hearing, smoking, obesity, depression, physical inactivity, diabetes and low levels of social contact.

In 2020, the commission added three more: excessive alcohol consumption, traumatic brain injuries and air pollution. The commission calculated that 40 percent of dementia cases worldwide could theoretically be prevented or delayed if those factors were eliminated.

So let me add to my initial question: when was the last time you had you had your vision and hearing checked?  No time like the present...