Monday, July 19, 2021
UVA Law Professor Naomi Cahn: Why Conservatorships Like the One Controlling Britney Spears Can Lead to Abuse
Prolific writer Naomi Cahn, who in 2020 moved from George Washington to University of Virginia School of Law as a distinguished professor and director of UVA's Family Law Center, has a new commentary on the potential impact of the Britney Spears' litigation challenging her California-based conservatorship. Professor Cahn observes at the outset:
Spears’ case is unusual: Conservatorships are typically not imposed on someone who doesn’t have severe cognitive impairments, and Spears has toured the world, released four albums and earned US$131 million, all while deemed legally unfit to manage her finances or her own body.
Despite the unique circumstances of Ms. Spears' circumstances, her case demonstrates the lack of national data tracking such "protective" proceedings. Professor Cahn writes:
Broad powers and “anemic” oversight make conservatorships subject to multiple forms of abuse, ranging from the imposition of unnecessary restrictions on the individual to financial mismanagement. Nothing can be done if no one finds out about the abuse.
A 2010 U.S. government report identified hundreds of allegations of physical abuse, neglect and financial impropriety by conservators. Most of them related to financial exploitation, and that, in turn, often meant that the victim’s family was affected, losing not just expected inheritances but also contact with the person subject to the conservatorship.
A 2017 New Yorker article on abusive guardians highlighted the case of April Parks, who was sentenced to up to 40 years in prison for financial conduct related to numerous conservatorships she handled. She was also ordered to pay more than half a million dollars to her victims.
But beyond these anecdotes, no one even knows the magnitude of the problem. That’s because conservatorships are subject to state law, and each state handles the imposition of them as well as data collection differently. And a 2018 Senate report found that most states are unable to report accurate data on conservatorships.
Professor Cahn sees Britney Spears' case as generating a national outrage that was missing from earlier anecdotal indications of problems for older adults trapped in "protective" proceedings. She concludes:
Spears may soon find herself free of her conservatorship. Regardless, her situation has already put a spotlight on the potential for abuse – and it may lead to a better system for those who genuinely need the assistance.
Friday, July 2, 2021
Politico ran an interesting story, ‘You don’t have to die in your seat’: Democrats stress over aging members.
Using a Florida Congressman as an illustration, the article notes that "[t]he entire episode has brought into sharp focus an awkward conversation that Democrats have been having for a while: at a time of deep polarization and narrow congressional majorities, do older or infirm members have a responsibility to step down to ensure the party has enough votes to advance its agenda?" The issue is one for both Democrats and Republicans. "Both parties have their share of elderly members ... But Democrats have been grappling with a noticeable generational divide within their ranks for some time — President Joe Biden and top Democratic congressional leaders are all well over 70. Ten of the 12 House members over the age of 80 are Democrats." The article discusses various other issues, including the slim majority held by the Democrats, the desires of younger folks to serve, and perhaps a lessening value of seniority.
Thanks to Professor Naomi Cahn for sending us the article.
Thursday, June 17, 2021
The New York courts have released a new Elder Justice Resource Guide, "the result of collaboration between The Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale and the New York State Unified Court System’s Division of Policy and Planning, and ... provide[s] a list of resources, information and support for New York’s judges, court personnel, and other legal professionals."
The 136 page guide is available online or as a pdf, and covers various topics. "The Elder Justice Resource Guide includes information about elder abuse, accessible courtrooms for older adults, capacity and confusion, effective communication, and available resources for older adults experiencing abuse. The Guide also includes a comprehensive directory of national, state, and local services available to older adults." (I particularly was interested in pages 12, 16-18 where Stetson's own Eleazer Courtroom is mentioned!)
Tuesday, May 25, 2021
Yesterday I was blogging about positive aging birthday cards. Today, I want to note a couple of articles from last month about ageism, and its prevalence in our culture. First, an article published in Time magazine: Ageist Attacks Against President Biden Reinforce Outdated Stereotypes—and Hurt Younger People, Too. "Age has long been a powerful political weapon, and Biden has by no means been the sole target. Similar questions have recently been raised about California Senator Dianne Feinstein, who, at 87, is the oldest member of the U.S. Senate, and Wilbur Ross, President Trump’s former Commerce Secretary, who’s now 83." Don't forget we also think about age when we think about some of the Supreme Court Justices.
The title suggests ageism harms us all. How does it hurt younger folks? The article offers this: "experts say age-based attacks ... demonstrate how common ageist stereotypes are in American culture—to everyone’s detriment. 'Cultural messaging gets internalized, and it can shape the attitudes that people have about their own aging process, and about their awareness of their age related changes when they do happen,'" one expert stated for the article.
The article points out the weakness of trying to correlate age and ability. "[M]edical advancements mean that people are not only living longer, but are often at their maximum cognitive capacity deeper into old age. The prevalence of older people with dementia “declined significantly between 2000 and 2012,” a 2017 study published in JAMA Internal Medicine found. 'Chronological age in and of itself is not a good indicator of what a person is capable of doing....'"
The article explains the impact of ageist attacks on us collectively and individually and suggest that "The key... is for people to be mindful of underestimating people based on their age, and instead look for instances in which individual older people defy stereotypes."
Follow the Time article with this one also from last month: The Old Guy’s Taking His Shot. Here's an excerpt:
Just days away from 100 days in office, there’s already a vigorous record of achievement that belies the notion that an old guy can’t handle the rigors of the job. Quite the opposite. For all those who complained before the election about another old white guy taking the reins, whined that we needed someone younger and fresher, and worried that he was the last guy to take the country into the future, Biden has proffered a compelling (and calm) counterpunch.
Knowledge, experience and the wisdom of age—matched with the common sense to surround himself with talented professionals and experts—looks not only like the right package for this moment, but a winning approach at any time. I’m not doubting that younger people are capable of handling the job, of course, but the 78-year-old might have one extra ingredient that his younger colleagues don’t.
P.S. Why do we refer to products as those that "fight aging" or are "anti-aging" instead of referring to them as "enhancing aging" or are for "positive aging"?
Monday, May 24, 2021
A few days ago I read about a website that offers positive aging birthday cards. The cards are part of a project based out of Colorado, Changing the Narrative: Ending Ageism Together, which "is a strategic communications and awareness campaign to increase understanding of ageism and to shift how Coloradans think about aging." Here's more info about the Colorado campaign:
Changing the Narrative in Colorado builds on five years of national work initiated by eight leading aging organizations that recognized a shared challenge: that what they were seeking to communicate about aging and ageism, and the social challenges and opportunities posed by demographic change, was not getting through in the way intended to the general public. They engaged FrameWorks Institute to research how the public thinks about aging and ageism, and to test messages that could shift thinking in a positive direction. This resulted in a toolkit and training trainers who could teach others effective ways of communication about aging and ageism. Read more about the organizations and funders involved in the national effort here.
Changing the Narrative in Colorado is one of two efforts  currently underway to bring this evidence-based messaging and communications about aging and ageism to regional audiences.
 The other is an effort in Northern New England by the Endowment for Health and Maine Community Foundation to build communications capacity through in-person and online training in reframing aging.
Now, about the birthday cards... The project is called the "Anti-ageist Birthday Card Project" where the organization "selected a diverse group of Colorado artists to design anti-ageist birthday cards. The designs defy negative views of aging and celebrate the joys of getting older. ... It’s time to celebrate the fact that we get to age."
There are a number of designs available for purchase, all of which may be viewed here. For more information about why positive aging birthday cards are so important in the fight against ageism, read the blog post available here.
Thursday, May 20, 2021
Colorado: "Former Police Officers" Facing Criminal Charges For Conduct in Arrest of Woman with Dementia
On May 19, 2021, the District Attorney's Office covering Loveland Colorado announced criminal charges against two officers who had already been removed from the force after details became public about their June 2020 arrest of a 73 year-old woman with dementia. The primary arresting officer was charged with second degree assault causing bodily injury, attempt to influence a public servant (both being felony charges) and official misconduct, a misdemeanor, while a second officer who arrived midstream, was charged with misdemeanors, of "failing to intervene" in a case of excessive force, failing to report the use of force, and official misconduct, according to records from the DA's office.
More details here:
May 20, 2021 in Cognitive Impairment, Crimes, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 4, 2021
I've had several recent opportunities to talk with individuals serving as primary caregivers for family members who have varying stages and types of neurocognitive disorders, including but not limited to age-associated dementia. One common concern in these conversations has been "that could have been my family member."
They are referring to news reports and body-cam videos of two officers in Loveland, Colorado in June 2020, as they apprehended, handcuffed, and took down "in a controlled manner" (the officers' description) a disoriented 72-year old woman. The officers were intent on arresting the woman following a report of her alleged "shoplifting" attempt of $14 dollars' worth of items at a local Walmart.
According to the federal civil rights suit filed on April 16, 2021, the actions of the police officers fractured Karen Garner's left arm, dislocated her shoulder, and terrified her. She was left for hours, crying and begging to go home while handcuffed in a booking cell, with no medical assistance offered or provided. One booking room video shows the officers laughing and commenting about the body-cam footage.
Such conversationa explained what many caregivers were thinking about when they learned what happened to the "frail little thing" (the officer's word), the 5 foot tall, 80 pound woman who had earlier been diagnosed with "mild" dementia:
- It could have been a lawyer's uncle, who has PTSD following return from tours of military duty and an IED injuty in Afghanistan;
- It could have been a colleague's father, who was diagnosed with FTLD causing him to lose inhibitions, sometimes involving confusing behavior in public;
- It could have been an older friend who recently needed help because she could not find her way through the "new" self-checkout system at the grocery store;
- It could have been a member of my family, as my sister related to me a story I had not heard before, about how our mother, distracted by a cell-phone call, walked out of a grocery store without paying for groceries and didn't realize that until after she had loaded them into her car;
- It "was" a man in his 60s with early onset dementia who wandered away from his home one night, only to be arrested for loitering and placed in a special containment area of the jail, where he was beaten to a pulp during the night by his cellmate (as I have written about before, here).
May 4, 2021 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases | Permalink | Comments (1)
Thursday, April 29, 2021
The AALS Section on Aging and the Law will focus its annual meeting program on inequality and aging. The conception of the program is broad and intended to encompass all matters of legal concern that involve age and inequality. Potential topics include but are not limited to aging in the criminal justice system, contact between family and nursing home residents during the COVID-19 pandemic, the disparate impact of policies within the Medicare and Medicaid programs, vaccine distribution policies, the rights and wages of care workers, the impact of technology on access to legal assistance, and economic inequality in later life based on disability, gender, race, sexual orientation, or other characteristics.
If you are interested in participating, please send a 400-600 word description of what you would like to discuss. We particularly encourage submissions from junior scholars and members of underrepresented groups in legal academia. Submissions should be sent to Professor Alexander A. Boni-Saenz, email@example.com by June 1, 2021.
Tuesday, April 6, 2021
The Long Term Care Community Coalition is offering a webinar on April 20, 2021 at 1 eastern on an Antidote to Ageism in Nursing Homes. Here's the description
Residents thrive when helped to achieve their highest practicable level of physical, mental, and psychosocial wellbeing. When the requirements of the Nursing Home Reform Act of 1987 are realized, the colonial, custodial injustice of long-term scare will finally end. In this webinar, Cathy Unsino, LCSW, will talk about how to transform nursing homes into warm, vibrant communities in which residents and staff thrive.
Click here to register.
Thursday, March 25, 2021
The World Health Organization released the Global Report on Ageism, which "outlines a framework for action to reduce ageism including specific recommendations for different actors (e.g. government, UN agencies, civil society organizations, private sector). It brings together the best available evidence on the nature and magnitude of ageism, its determinants and its impact. It outlines what strategies work to prevent and counter ageism, identifies gaps and proposes future lines of research to improve our understanding of ageism."
The executive summary is available here, discussing nature, scale, determinants, and impact of ageism, as well as strategies to reduce it and suggestions for actions. The entire 202 page report is available here.
Monday, February 1, 2021
Usually when I blog about ageism, it is not a story about something positive. So it's nice to see a positive take on age diversity. How age diversity in a presidential Cabinet could affect policies and programs explains that "[h]aving so many advisers of different ages should – theoretically – bring perspectives from different age groups and better represent constituents of different ages." The section on intergenerational politics discusses whether the various generations lean conservative, moderate or liberal in their politics.
Age-based political theories are based on aggregate behaviors. They do not predict the political persuasions of an individual voter or political leader. After all, Sen. Bernie Sanders, at 79, is one of America’s most progressive senators.
Age is especially less likely to determine political allegiance among racial and ethnic minorities. These groups tend to vote more Democratic regardless of age.
Thanks to Professor Naomi Cahn for sending us the link to this article.
Tuesday, December 29, 2020
Before the holidays, The Washington Post ran an article that really resonated. At my age, it’s time to fight everyday ageism — especially when I’m guilty of it starts with a mention of birthday cards that make old age jokes, compliments (you don't look your age), and even lying about one's age. The author explains that this type of action is indicative of everyday ageism, that is "reinforcing the stereotype that old is bad (and young is good). I’d absorbed the negative messages about being older." Please don't think this is something that happens occasionally. (Just think about greeting cards and party decorations). The article notes that "the University of Michigan in conjunction with AARP reported the findings of its National Poll on Healthy Aging, which described how those .... 50 to 80 ... are bombarded with negative and hostile stereotypes."
Here are some telling results from that poll:
The poll examined older adults’ experiences with nine different forms of ageism, which fall into three buckets: exposure to ageist messages (like advertising), ageism in interpersonal relationships (what friends or family say) and internalized ageism (negative beliefs we absorb).
According to the poll, “more than 80 percent of those polled say they commonly experience at least one form of ageism in their day-to-day lives.” And 40 percent said they routinely experience three or more forms of this everyday ageism...."
The article notes the physical and psychological impact on those subjected to everyday ageism. And it's just not in person interactions. [T]he more time we spend watching television, browsing the Internet or reading magazines, the more likely we are to experience everyday ageism, meaning negative — and incorrect — images of older people such as those depicting us as frail or dependent, or unable to use new tech devices or social media platforms." The article offers some steps we can take to push back against this everyday ageism.
I plan to use this article in my class. My hope is it will make my students think...and change their behaviors.
Thanks to Professor Naomi Cahn for sending me the link to the article.
Friday, October 9, 2020
As many of our regular readers know, I grew up in Phoenix, Arizona. One of the developments I have followed over the years is the number of homeless residents of Phoenix. I'm a cyclist in my spare time and one of my regular downtown bike routes in Phoenix takes me past an ever-growing encampment. In addition, a large park near my parents' home now serves as a daytime gathering spot for many. In the scorching heat of the summer, and the desert cold of the winter, there are more and more people without adequate shelter. The New York Times recently pointed out that in contrast to historical statistics suggesting that nationwide, "elderly" persons make up a small percentage of the homeless population, in the last few years we are seeing a surge among older adults. See Elderly and Homeless: America's Next Housing Crisis, a feature article published on September 30, 2020, that, in part, profiles the issues in Arizona.
So, it was with great interest that I read a report on a federal appellate decision, limiting the ability of municipalities to use criminal laws to penalize individuals, in an attempt to discourage or remove people who are living on the streets. The report is by one of Dickinson Law's third year law students, Jacqueline Stryker. She writes in part:
"The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance. In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the 9th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter. The Court concluded that it does. A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. "
Ms. Stryker observes in her conclusion, "Whether the decision of the Ninth Circuit in Martin will gain traction a local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen."
For more of Ms. Stryker's timely, concise case analysis, see: Municipal Efforts to Combat Homelessness.
Tuesday, July 7, 2020
Upcoming in July: AALS/CLEA Virtual Clinical Conference to include Pandemic-Impact Speakers on Clinics that Serve Older Adults
AALS's Clinical Section and CLEA are hosting a free Virtual Clinical Conference that begins Tuesday, July 21, running through Thursday, July 23. The conference offers two plenary sessions, a webinar, asynchronous videos, large group discussions, small group discussions focued on specific topics or within affinity groups, very timely programs sponsored by Clinicians of Color, and a final community building session.
Jam-packed! -- but also easy to navigate through the virtual platform. Here's the link to the full schedule. The sessions will begin each day at noon, Eastern Daylight Savings Time. Register for the Conference here.
And did I mention it is FREE?!
Elder Law/Disability Law Clinical gurus Martha Mannix (University of Pittsburgh) and Mary Helen McNeal (Syracuse) will be facilitators for three afternoon sessions on "Student Representation of Elderly and Special Needs Clients in Virtual and COVID World" and the brainstorming topics include:
1. Discussion on how we might reimagine our encounters with our elderly clientss or clients with disabilities through communications technology or creative reconfiguring of in-person client meetings.
2. Discussion on the role of students. Does the COVID-19 emergency require us to restructure or reimagine the role of the clinic student and our supervision of them in light of the challenges presented by remote learning and representation and institutional desires to shield student from risk?
3. Discussion on whether we might consider altering the nature of our legal work in clinical settings: Is this the moment best met by continuing individual representation or should we turn our ckubucak efforts to addressing systemic issues or engagement in policy advocacy?
And to add to the intrigue -- the final session of the three-day program includes a Dance Party! Let your inner "Hairspray" shine!
Thursday, July 2, 2020
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
July 2, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International, Programs/CLEs, Statistics | Permalink | Comments (0)
Thursday, June 18, 2020
More Reasons for a Serious Bi-Partisan Commitment to Citizenship for DACA Health & Long-Term Care Workers
Shared by my colleague, Professor Medha Makhlouf, who heads Dickinson Law's Medical-Legal Partnership Clinic, this thoughtful article explaining the importance of DACA-recipient health care workers in the United States, especially now:
The Covid-19 pandemic is stretching our public health system to its limits and challenging our ability to meet the urgent and critical medical needs of the country as never before. As executives responsible for the legal affairs of major hospitals and lawyers working in Covid-19 hot spots, we know how crucial it is to have every available front-line medical worker fighting this pandemic. . . .
New data from the Center for American Progress reveals that the DACA-recipient health care work force includes more than 6,000 diagnosing and treating practitioners, including respiratory therapists, physicians assistants and nurses; some 8,000 health aides, including nursing assistants and orderlies; more than 7,000 other health care support workers; and some 5,500 health technologists and technicians.
The Association of American Medical Colleges told the Supreme Court that nearly 200 physicians, medical students and residents depend on DACA for their ability to practice medicine and serve their communities. Those 200 trainees and physicians alone would care for hundreds of thousands of patients per year in normal times — the association estimates as many as 4,600 patients per year, per person. Under the demands of the Covid-19 pandemic, those numbers will be much higher.
The Center for Migration Studies found that 43,500 DACA recipients work in the health care and social-assistance industries, including more than 10,000 in hospitals....
The decision on the DACA case is expected this week. "If the Supreme Court upholds the decision to terminate DACA, nearly 700,000 people — including those health care workers — will lose their ability to work and live in the United States." For more, ready the full NYT article, There's Only One Thing Stopping Trump From Deporting Health Care Workers.
For once, the members of Congress from both sides of the aisle should be ready with emergency legislation for citizenship (or at a minimum, permanent residency status) for these essential workers. It is the least we can do for people who are doing the most. And it is vital for the best interests of public health across the nation. A win-win, if we can just focus on what's important.
WOW! Moments after I posted the above, I see the news flash that Supreme Court Rules Against Trump Administration Attempt to End DACA, A Win for Undocumented Immigrants Brought to U.S. As Children.
After reading the opinion(s), it is clear that while DACA recipients have a temporary reprieve, the real need is serious consideration of true relief from fear of deportation. Must they really wait until after the election?
June 18, 2020 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, International | Permalink | Comments (0)
Wednesday, May 27, 2020
In senior living, one of the more interesting phenomena are so-called "naturally occurring retirement communities," or NORCs. This label, or a related "village" label, is often used to describe residential settings where a large proportion of the population is now over the age of 60, not by design or plan. The citizenry has continued to live there as they age, and has attracted complementary local service industries, such as wellness programs, home health visitors, day care options, and adapted transportation modes. Some of the early, well documented and often studied NORCc include Beacon Hill in Boston, and Upper Park Heights in northwestern Baltimore. Residents in the area often take great pride in the trend, emphasizing it as a positive way to age in place, drawing upon appropriates supports that help to maintain individual dignity.
But what happens when a new, highly infectious disease also finds its way into a NORC? As is too often true in law, the answer is probably, "It depends."
One such place is Co-op City in the Bronx. According to some reports it is the largest residential development in the U.S., with 43,000 residents in 36 towers and seven townhouse clusters, plus larges grass fields, walking paths, a community garden, nearby schools, shopping, and its own Little League baseball field. Development of the planned, cooperative housing projects that comprise Co-Op City occurred from approximately 1966 to 1976. The 2000 census showed that 60.5% of the population of Co-op City was African American, about 27.7% were Hispanic or Latino and about 8.6% were white. A corporation is in charge of management.
Co-Op City has also become an unplanned NORC, with one of the largest populations of elderly in the country. As early as 2007, public sources estimated that over 8,300 of the residents were over the age of 60. See also 2016 statistics that indicate that 21% of the population in District 10 (where Co-Op City is located) is over age 65, in comparison to New York City's overall age 65+ population of 16%. Co-Op City is recognized as a NORC-JASA community for age-related programming and services.
In 2020, the Bronx generally and Co-Op City especially appear to have been hard hit by the corona virus. Public media sources, reporting here and here, use statistics released by city health officials, to reveal "that the virus has killed at least 155 people in the zip code" that covers Co-Op City. "That's roughly 1 in every 282 residents." (Hmm. I'm not sure about the numerators and denominators used in these articles).
It may be tempting for some to dismiss negative statistics in any single statistical areas as due to a single factor, such as vulnerability tied to advanced age. That can be dangerous as discussed in the article by Barbara Pfeffer Billauer, linked in my May 26 post.
Instead, take the time to consider other factors that may point to the deep risk of infectious disease in certain congregate settings and that appear to exist in Co-Op City:
- a geographic community with physical constraints that mean residents depend on public transit -- at a higher risk -- for much of their connection to the working world, including non-family caregivers and service providers;
- confined locations to do necessary shopping for food and pharmacy supplies;
- comparatively tightly packed living or working spaces;
- and, significantly, common ingress/egress for buildings via limited numbers of hallways and tall towers of elevators for all such comings and goings.
In this instance, a NORC, usually considered a better space for aging in place, arguably may have become a large-scale version of a nursing home, with abundant opportunities for building-to-building, apartment-to-apartment transmission of infections. At a minimum, perhaps this is another reason to think more aggressively about public health strategies and health policy priorities in light of the lessons we are learning from the Covid-19 pandemic.
Special thanks to my Dickinson Law colleague, Professor Sarah Williams, for alerting me to what is happening with coronavirus in Co-Op City.
Tuesday, May 26, 2020
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."
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!
May 26, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Housing, International, Statistics | Permalink | Comments (0)
Thursday, May 21, 2020
NYT: Homes with Significant Number of Black and Latino Residents Twice as Likely to Be Hit by Coronavirus
The New York Times offers deep analysis of the impact of race on coronavirus infection rates in nursing homes. A lot to unpack, starting here:
The coronavirus pandemic has devastated the nation's nursing homes, sickening staff members, ravaging residents and contributing to at least 20 percent of the nation's Covid-19 death toll. The impact has been felt in cities and suburbs, in large facilities and small, in poorly rated homes and in those with stellar marks.
But Covid-19 has been particularly virulent toward African-Americans and Latinos: Nursing homes where those groups make up a significant portion of the residents -- no matter their location, no matter their size, no matter their government rating -- have been twice as likely to get hit by the coronavirus as those where the population is overwhelmingly white.
For more issue spotting, read The Striking Racial Divide in How Covid-19 Has Hit Nursing Homes.
Monday, May 11, 2020
Syracuse Law Professor Nina Kohn (currently a visiting professor at Yale Law), has an important Op-Ed in the Washington Post, in which she tackles the not so subtle ageism that accompanies response to COVID-19 -- while making it clear that the issues are much deeper than a single disease. She writes:
Of course, older adults are at heightened risk, even though covid-19 strikes younger people, too. But across America — and beyond — we are losing our elders not only because they are especially susceptible. They’re also dying because of a more entrenched epidemic: the devaluation of older lives. Ageism is evident in how we talk about victims from different generations, in the shameful conditions in many nursing homes and even — explicitly — in the formulas some states and health-care systems have developed for determining which desperately ill people get care if there’s a shortage of medical resources.
For more, read The Pandemic Exposed a Painful Truth: American Doesn't Care About Hold People. The subtitle? "We speak of the elderly as expendable, then fail to protect them."
May 11, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Statistics | Permalink | Comments (0)