Friday, September 27, 2019
I gave my students an assignment to write a blog post on a current event that would be of interest in a class on law and aging. Here are two that I've received---I thought you might find them interesting.
This was supposed to have been a fun family weekend. My sister-in-law was headed home with a car filled with special treats and presents to celebrate my niece's sweet sixteenth birthday. The weather was clear and traffic was moving smoothly when the crash occurred.
A ninety year old drove through a stop sign and directly into traffic, causing a multi-car accident. My sister-in-law had to be cut from her SUV and taken to the trauma center. I saw her crumpled vehicle first-hand, and it is an absolute wonder she survived. It is uncertain how long her injuries will significantly impact her life. Yet, she was the incredibly lucky one.
A young couple and their infant was also struck by the elderly driver's car. Seeing this family's vehicle was horrific. I knew the infant was in critical condition at the hospital. When I saw this car, it looked as if it had been in a compactor; it didn't seem possible for anyone to survive. Unfortunately, the infant didn't.
As those involved in the accident struggle to heal and make sense of the tragedy, my heart goes out to the family of the elderly driver. I have so many questions. I wonder...did family members recognize the signs that their loved one should no longer be driving? Did they try to intervene? Was the driver aware of taking the wheel? Is he aware now? How will the driver and family cope with the legal and emotional burden of this accident? What more can be done to prevent this kind of heartbreak?
Elders in Politics: Perceptions of elders in the 2020 election
Brandy Orth Becker
While the perception and social utility of elders in the United States has always been a topic of discussion, throughout American history, there is a revamping of this discussion with the perspective of another elder ( 65+) as President of the United States of America.
Some common associations with the concept of getting older are memory loss, confusion, social dissonance, etc. All of these factors go to the sharpness of the mind and the ability to understand and process information. These factors are such that if relevant, any leader of a nation could be called into question.
Vice President Joe Biden has been the most clearly targeted in this 2020 election as far as ageism. Despite the fact that many who take the stage at a political debate have a tendency to jumble words, forget details, or misspeak, his errors are being connected automatically to senility and attributed to his age. After an inconsistent statement by Biden in the democratic presidential primary debate in Houston, co-candidate Julian Castro insinuated that Biden was unable to recall the statements that he had just made moments ago (See article). The internet in a quick response, picked up on the insinuations of Mr. Castro. As a result, any actual factual or political statements made by Biden in the debate were overshadowed by a discussion/parody of his age and capacity to lead as an elder.
At 72, Vice President Joe Biden is the oldest among the democratic candidates in the 2020 election. However, with his age comes a very impressive career in the political realm, making him one of the most politically experienced candidates among the bunch. It will be up to the American People in anticipation of, and at the polls, to weigh these facts, and to decide if age will in fact play a factor in disqualifying a presidential candidate.
Monday, February 25, 2019
The 2019 Oscars are behind us. Prior to the awards being announced, there was some attention given to the potential for recipients breaking the "age ceiling." The NYC Elder Abuse Center published this blog post, 2019 Oscar Watch: Actors Set to Break the Silver Ceiling. Noting the issues of ageism and the ability of computers to make folks look years younger, the post references a recent study showing lack of progress on inclusivity in film. "While adults 50 and older make up more than 30 percent of all moviegoers, the study found less than one-third of the highest-grossing films of 2017 featured a male 45 years of age or older at the time of theatrical release. Only five films featured a woman in the same age bracket, including Meryl Streep, Amy Poehler, Judi Dench, Halle Berry, and Frances McDormand." The blog post lists various nominees who are older, and also points out that the documentary about Justice Ginsburg is also up for an award.
Tuesday, January 8, 2019
Here is the abstract of his article
Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.
The article will be published in vol 53 of the Ga. Law Review.
Monday, September 17, 2018
As anyone who has a loved on in a care setting can probably attest, the individuals who work there have tough jobs.
I was interested to read a McKnight's Senior Living commentary that focuses on a problem that may not be easy for the public to identify, the intentional use of "part-time" help to avoid an obligation to pay benefits for full time workers.
The author describes one woman who works 30 hours per week for each of two different employers -- that is 60 hours per week of hard work without benefits such as employer-sponsored health insurance. John O'Connor writes in an important column (with a title that could perhaps, unfortunately, be misunderstood because of the reference to a Hispanic name), Senior Living Has Way Too Many Marias:
We often hear about the labor challenge in senior living. To be sure, it's very real. There is a lot of competition, and conditions are especially difficult these days. It's not easy to find and keep people willing to work for the wages that are available.
But if we are going to be honest, at least part of the problem has little to do with unforgiving external conditions and more to do with conditions some operators have decided to put in place.
To get more to the point, many communities simply refuse to hire full-time workers. From an economics standpoint, that is understandable. But it doesn't do much for the Marias of the world. And there are a lot more of them out there than many operators would like to admit.
Thursday, August 23, 2018
A column from the Manteca/Ripon [California] Bulletin on "The Impact of 'Elderly' & Other English Words," offers interesting perspectives on labels, especially in a time where high-profile name calling seems calculated to cause wide offense. But what about more casual uses of labels?
The column by Dennis Wyatt was sparked by news coverage about a vicious attack on a 71-year-old Sikh man in California's Bay Area. Several of the coverage items referred to the victim as "elderly."
In response to reader criticism of the label, Wyatt explains his perspective:
Words can and do conjure up specific and different reactions and images with various people. Besides government definitions, laws and terminology that place people 65 and older under the umbrella of elder law there are other factors at play with language whether it is current trends, regional or cultural influences, or generational.
In the case of the vicious attack on the 71-year-old that those who knew him described him as frail and elderly, the word “elderly” confers the fact he’s not a “strapping” 71-year-old. I know of a few guys in their early 70s that the suspect in Monday’s attack would not have messed with. Not because they were simply healthier and would fight back but because they could have probably cleaned his clock.
The word “elderly” conveyed the correct image. The man was a vulnerable target and I’d venture to say the cowards that attacked him determined that to be the case.
I do agree with [one reader's] observation that simply being 71 years old doesn’t make one elderly. At 62 I don’t feel old at all. In fact I can make a solid case I’m “younger” today in terms of health and what I can do physically than when I was 18.
In my elder law class, I sometimes begin the semester by asking students to give a definition of "elderly." The results are often interesting.
Monday, August 20, 2018
From wedding cakes to retirement communities. The dissonance here starts from the first mention of the name of the community, "Friendship Village." From the New York Times's Paula Span, comes news of a challenge to an admissions policy as applied to an older, same sex couple seeking to move into a "faith-based" nonprofit Continuing Care Retirement Community or CCRC (also known as Life Plan Communities) near St. Louis:
The community seemed eager to recruit them, too, offering a lower entrance fee if they signed an agreement promptly. So they paid a $2,000 deposit on a two-bedroom unit costing $235,000. They notified their homeowners association that they’d be putting their house in Shrewsbury, Mo., on the market and canceled a vacation because they’d be moving in 90 days. Ms. Walsh contacted a realtor and began packing.
Then came a call from the residence director, asking Ms. Walsh the nature of her relationship with Ms. Nance, 68, a retired professor.
Natives of the area, they’d been partners for nearly 40 years. Before the Supreme Court legalized same-sex marriages across the country, they’d had a harborside wedding in Provincetown, Mass. “I said, ‘We’ve been married since 2009,’” Ms. Walsh replied. “She said, ‘I’m going to need to call you back.’”
Last month, the women brought suit in federal court, alleging sex discrimination in violation of the federal Fair Housing Act and the Missouri Human Rights Act.
For the full article, read "A Retirement Community Turned Away These Married Women."
August 20, 2018 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Tuesday, August 14, 2018
Genetic Information Nondiscrimination -- Should Consumer Protections Apply to Long-Term Care and Disability Insurance?
While following the most recent Tour de France cycling competition, I was intrigued by the spectrum of "products"advertised on broadcasts of the race stages -- or, alternatively, on the increasingly popular medium of podcasts by commentators such as Lance Armstrong on The Move. On one end was the amusing use of bicycling footage from the new movie Mama Mia 2, spliced to make it appear actual TdF racers were just ahead of the maniacal cast. On the other end were advertisements for genetic testing via companies once better known for tracking family trees. If your TdF hero (or anti-hero?) Lance Armstrong was advocating the benefits of better genetic knowledge via Helix, would those consumers consider the potential ripple effects of such knowledge?
Kaiser Health News recently pointed to key issues:
The federal Genetic Information Nondiscrimination Act [of 2008] prohibits health insurers from asking for or using your genetic information to make decisions about whether to sell you health insurance or how much to charge. But those rules don’t apply to long-term-care, life or disability insurance.
When you apply for long-term-care insurance, the insurer may review your medical records and ask you questions about your health history and that of your family. It’s all part of the underwriting process to determine whether to offer you a policy and how much to charge.
If the insurer asks you whether you’ve undergone genetic testing, you generally have to disclose it, even if the testing was performed through a direct-to-consumer site like 23andMe, said Catherine Theroux, a spokeswoman for LIMRA, an insurance industry trade group.
In the current political climate, it seems unlikely that Congress would tackle a wider application of mandatory nondiscrimination policies connected to risk factors for additional insurance policies. Thus, if you are asked the questions, you have to tell the truth or be subject to disqualification from benefits if the company later learns, for example, you were aware you had genes associated with increased risk of dementia, but failed to disclose that fact in the application process, a factor relevant to underwriting. Timing can matter, as also suggested in the Kaiser Health News Report:
Some states provide extra consumer protections related to genetic testing and long-term-care insurance, said Sonia Mateu Suter, a law professor at George Washington University who specializes in genetics and the law. But most follow federal law. If you get genetic testing after you have a policy, the results can’t affect your coverage.
August 14, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, August 8, 2018
The National Center on Law & Elder Rights is offering a free webinar on August 14, 2018 at 2 edt on Legal Skills-Eviction Defense-Helping Older Tenants Remain at Home.
Here's a description of the webinar:
More older adults are choosing to rent, rather than purchase homes. Older tenants are particularly at risk of eviction due to unaffordable rent increases, or retaliation for complaints regarding code violations. Moreover, as adults age, landlords may be reluctant to make reasonable accommodations for tenants with disabilities. Affordable housing is an important option for older renters, as it may offer reduced barriers and helpful amenities, but older adults may face other challenges preserving their tenancies in such housing.
This legal basics webcast will present a general overview of the tenants’ rights, examine one state’s process, and discuss defenses to eviction and other effective strategies to counter displacement.
To register, click here.
Thursday, June 28, 2018
Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy in 2012.
Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers. Judge Jane Magnus-Stinson observed, in ruling in favor of Ms. Vaughn, that
The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)
Monday, June 25, 2018
Our friend and frequent contributor, Naomi Cahn, recently sent us an item about an age discrimination in employment investigation at Intel. Silicon Valley's quieter discrimination fight, published in Axios at the end of last month, offers this quick take "[t]he disclosure that Intel is under investigation for age discrimination highlights what many see as an unspoken truism of the tech industry: it's a young man's game...Why it matters: Over the last year, much has been made of the industry’s maleness. But there’s been less of a spotlight on its preference for youth over experience." The Axios article offers these statistics:
By the numbers:
- Nearly 20% of those laid off by Intel in 2016 were 60 or over, according to the Oregonian.
- 7.8% were 55-59.
- 11.2% were under age 45.
- 5% were under 35.
Intel isn't alone, as the article notes, other companies have been investigated. The takeway, according to the article,
Our thought bubble: While much of the age discrimination issue centers around worker bees vs. tech leaders, Silicon Valley also has a love affair with young founders. But as these companies move to the center of our economic and social existence, they need to tap the experience of workers and managers who've built institutions and weathered storms. Otherwise, no matter how smart they are, they'll keep making rookie mistakes.
- As for the industry's silence on the topic, it's a fair bet that many prefer to keep their head down and pass as younger rather than carry the mantle of being the voice for the older tech worker.
Side note: It's somewhat interesting that Intel finds itself in the crosshairs given that the company has been a leader among big tech firms in trying to diversify its ranks when it comes to race and gender. Intel, for its part, denies it has discriminated based on age or any other basis.
Friday, May 4, 2018
Recently I was asked the question whether a CCRC could bar new residents from moving into independent living units, if they were using wheelchairs or walkers. The question perplexes me, not just because of the legal implications under the Fair Housing Act and the Americans with Disabilities Act, and other federal laws, but because I do understand what was motivating the question, at least in part. It was a concern about "sustainability" of the community living model, and the need to attract younger, healthier residents. In a sense, it was an argument that "I don't mind, but others might."
Paula Span, longtime columnist for the New York Times takes this issue to another venue -- "assisted living" -- where some operators are attempting to ban those who use wheelchair, even temporarily. The cited reason is that "we cannot accomodate a wheel-chair bound patient." She captures the dilemma well in her title, "Wheelchairs Prohibited In the Last Place You'd Expect."
Ultimately, I think we all need to be more comfortable with the fact that we do grow old and we do sometimes need assistance. But, I understand, this is tough to accept.
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Sunday, February 25, 2018
As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals. The Court tackles head-on the issue of who has the power to take action to address improper discharges.
On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge." Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits.
In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.
The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland. The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state. As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."
There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see State of Maryland v. Neiswanger Management Services LLC..
For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.
See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.
February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, February 23, 2018
The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note. From the opening paragraphs:
Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.
The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.
Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.
This article is definitely worth a careful read.
February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, January 17, 2018
I've sat in on dozens of mental acuity screening exams for individuals exhibiting indications of some form of dementia.
Regarding the "perfect score" reportedly received by President Donald Trump on a mental acuity screening test during his January health exam, it may be helpful to consider what is -- and isn't -- covered by such assessments. One view is provided in an opinion piece this week in the Washington Post, using history from a criminal case where Brooke Astor's son and an attorney were found guilty of exploiting her alleged mental incapacity. From the article:
On its surface, the Montreal Cognitive Assessment (MoCA) test seems pretty easy. Can you draw a three-dimensional cube? Can you identify these various animals? Can you draw a clock? Can you repeat back the phrase, “The cat always hid under the couch when dogs were in the room”? . . .
If you look at the test, it’s pretty hard to see how you could not score a 30. You see a picture of a lion and have to identify it as a lion? That old joke about how the elderly and toddlers are subject to the same indignities seems pertinent here: Is this really the bar that needs to be met to demonstrate full mental capabilities?
Well, according to those who study dementia and other mental deterioration, yes.
In 2009, I spent six months serving on a jury in the state of New York that was asked to judge the guilt or innocence of a man named Anthony Marshall. Marshall was the son of Brooke Astor, a New York socialite and heiress to the much-diminished Astor fortune. If you’ve ever traveled to New York, you’ve encountered the name: Astor Place, the Waldorf-Astoria or the Astoria neighborhood in Queens. Marshall was accused of having taken advantage of Astor’s diminished mental state to change her will without her being aware of the changes made. Ultimately, the 12 members of the jury found Marshall guilty of several charges.
Over the course of that trial, we were presented with a great deal of information about how doctors assess the mental capabilities of a patient. This was critical to the prosecution; were they not able to prove that Astor’s mental state was diminished, it undercut their argument that Marshall had acted without his mother’s consent. As such, expert witnesses testified about their personal examinations of Astor and others spoke to the reliability of the tests.
Central to that case was one of the components of the MoCA test: drawing a clock. Astor was asked repeatedly to draw analog clocks as a test of her mental acuity. On more than one occasion, she was unable to do so properly. . . .
The point is not that the test is easy. The point is that an inability to complete aspects of the test reveals different types of mental decline. The clock test is about executive brain function: memory, planning ahead. The different parts of the MoCA are labeled according to what they test, with the clock test falling under “visuospatial/executive.” Questions about the current year and date are under “orientation.” The request to identify a drawing of a camel is under “naming.” In the test’s scoring instructions, it explains what is covered: “attention and concentration, executive functions, memory, language, visuoconstructional skills, conceptual thinking, calculations and orientation.”
It is, as Trump’s doctor noted, a tool for identifying early signs of mental deterioration, like the mental version of a blood sample on which your doctor runs a battery of tests. It’s not the SAT; it’s a screening device.
For more, read Why You May Be Misunderstanding the Mental Test that Trump Passed with Flying Colors, by Philip Bump.
January 17, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Science | Permalink | Comments (0)
Thursday, December 21, 2017
The New York Times ran an interesting article that was co-researched and co-written with ProPublica, Facebook Job Ads Raise Concerns About Age Discrimination Target marketing is nothing new. I'm sure you all have the experience of having ads for things you might "like" pop up all over webpages you are browsing. So what about target marketing for job applicants? The article notes that a number of large corporations have "placed recruitment ads limited to particular age groups ... The ability of advertisers to deliver their message to the precise audience most likely to respond is the cornerstone of Facebook’s business model. But using the system to expose job opportunities only to certain age groups has raised concerns about fairness to older workers." This then raised the question-whether such advertising would be considered discriminatory. Facebook's response "[u]sed responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work,” said Rob Goldman, a Facebook vice president."
The article explains how this story came about in doing research for another story regarding political ad placement. Now litigation has started, according to the story. "[A] class-action complaint alleging age discrimination was filed in federal court in San Francisco on behalf of the Communications Workers of America and its members — as well as all Facebook users 40 or older who may have been denied the chance to learn about job openings. The plaintiffs’ lawyers said the complaint was based on ads for dozens of companies that they had discovered on Facebook."
There are a number of social media sites used to advertise jobs, and the article notes for example that they may require advertisers to certify compliance with non-discrimination laws. The article discusses a number of legal issues, including what, if any, liability the social media companies may have. It's a fascinating article that presents arguments on both sides of the issue. Check it out!
Tuesday, December 12, 2017
The "Aging Brain" Conference hosted by Arizona State University's Sandra Day O'Connor College of Law held on December 8, 2017 at the Sandra Day O'Connor United States Courthouse in Phoenix (that's a double helping of Sandra!) proved to be a fascinating, deep dive into the intersection of medicine, ethics and law with a focus on neurocognitive diseases, including Alzheimer's Disease. The panelists and audience included academics in a wide range of fields, plus practitioners in medicine, law, social services, and more, along with both state and federal judges. United States District Judge Roslyn Silver is a long-time supporter of law and science programming with ASU.
One of the important themes that emerged for me was the growing significance of pre-symptomatic tests that can disclose genetic markers associated with greater incidence of an eventual, active form of a degenerative brain disease. Neurologist Richard Caselli from Mayo Clinic and Jessica Langbaum, principal scientist with Banner Alzheimer's Institute laid out the latest information on a variety of genetic testing options, including the possibly mixed results for "risk" connected to positive results for specific genetic markers. A provocative question by a morning speaker, Law and Biosciences Professor Henry T. Greely at Stanford, captured the personal dilemma well, when he asked the audience to vote on how many would want to to know the results of a genetic test that could disclose such a connection, especially as there is, as yet, no known cure or even any clear way to prevent most neurocognitive diseases from taking hold.
Taking that a step further, how many of us would want our employer to know about that genetic marker results? How about our health insurers? As we discussed at the conference, some consumer information is already available through "popular" ancestry testing sites such as "23 and Me," which expressly offers testing for "genetic health risks," including "late-onset Alzheimer's Disease and Parkinson's Disease." Arizona State Law Professor Betsy Gray, director of the Law & Neuroscience Program for ASU's Center for Law, Science and Innovation, who master-minded the conference, helped to identify a host of legal and ethical issues connected to this developing world of science and medicine. Jalayne J. Arias, a full-time researcher at University of California San Francisco's Neurology, Memory and Aging Center (and clearly a rising academic star and graduate of ASU Law) outlined the implications of pre-symptomatic testing from the perspective of long-term care insurance. For more from Professor Arias, I recommend her 2015 paper for the Journal of Clinical Ethics on Stakeholders' Perspectives on Preclinical Testing for Alzheimer's Disease.
I plan to write more about this conference, as many perspectives on legal, ethical and medical questions were offered.
Monday, November 27, 2017
A Frameworks Institute initiative, Reframing Aging, now includes a free video on reframing aging and ageism. The video can be ordered here. (Although free, you still need to enter your contact information and then receive an email with login info to start the course. The course info explains that the "lecture series, [provides] a guided tour of how to use new, evidence-based framing strategies to communicate more powerfully about aging as a social policy issue." The sponsors of the lecture series are Grantmakers in Aging and the Leaders of Aging Organizations. Topics include “What's in a Name?,” “The Swamp of Cultural Models,” “Rethinking Narrative,” “Stories to Stop Telling,” “Embracing the Dynamic” and “Confronting Injustice.
Tuesday, November 7, 2017
Here's the introduction to the guide:
An important part of the practice of many elder law attorneys is assisting clients to receive and then benefit from Medicaid home and community-based services (HCBS). In March 2014, the Centers for Medicare and Medicaid Services (CMS) published the first ever regulations establishing standards for the settings in which HCBS are provided.1 These regulations will impact the services, quality of life, and rights of HCBS care recipients, as well as the environment in which they receive those services. Each state must develop and implement a plan for how it will come into compliance with the HCBS rules. The involvement of advocates, including elder law attorneys, in influencing the plan and monitoring its implementation is critical. This guide is designed to provide elder law attorneys with a better understanding of the HCBS settings rule and how they can advocate for a strong, effective system that achieves the spirit and intent of the rule.
The report notes that the reason for "HCBS Medicaid services is to be an alternative to institutional settings." Thus, the rule's main reason "is to define the qualities that make a setting a home that is truly part of a larger community." Additionally, the rule is designed to confirm that those recipients really are part of their community. Last, but not least, the rule is intended to make the lives of these folks better as well as getting them more choice and protections. The report can be downloaded here.
Monday, October 9, 2017
Steve Moran, who writes for Senior Housing Forum, a website that offers itself as a "place for conversation and collaboration," always seems willing to take on sensitive topics. Recently, in a commentary piece entitled Black Consumers and Senior Living, he nonetheless began:
I am terrified to be writing and publishing this article. It seems that writing anything about race is fraught with all kinds of downsides and very little in the way of upside. Except that we have an ethnic problem in senior living. Today, based on resident populations, only white people (and Asians) seem to like senior living.
He addresses provider attempts to "explain away" the problem and arguments about whether "Blacks and Whites have different world views." Ultimately, recognizing the need for both sensitivity and fearlessness, he concludes, "[I]f senior living is really a great thing, and I believe it is, then we have an obligation" to make it available to everyone.
Certainly there are "marketing" reasons to reach out to a broader circle of perspective clients to offer supportive, attractive community living. But, I think Steve's short post is a good start on other fundamental questions about what consumers want, need, expect, and cherish as they approach some invisible line that makes them eligible for senior living.