World Elder Abuse Awareness Day, June 15, 2017

Face on the Rock of Cashel

This isn’t my first post about World Elder Abuse Awareness Day or WEAAD for short. It’s an annual post for me on this day – last year I looked at the “international” part of WEAAD, as well as the national (federal) focus.  This year I will focus on a local aspect – as in Colorado law that can be used to stop an abuser straightaway.

First let’s revisit the basics of what can constitute elder abuse – keeping in mind that each state has its own set of laws addressing this matter, as does the federal government.  This lack of a common definition is part of the challenge in reporting elder abuse and identifying the numbers of elders involved.  But I think the biggest challenge remains in recognizing that elder abuse is a problem that affects our society, not just individuals taken advantage of by strangers or harmed by their loved ones because they are perceived as old, of little value to society, or as an impediment to an heir’s inheritance…

While there is an unfortunate variety of types of elder abuse – elder abuse generally includes:

Mistreatment – this is the preferred term for the American Society of Aging, which is offering a course on mistreatment as comprising abuse and neglect;

Abuse of a financial nature/exploitation – this includes the unauthorized or illegal use of or access to an elder’s financial resources that covers a range of activities such as theft, undue influence, deception or fraud, misrepresentation or coercion;

Abuse of physical nature – this includes violence of a physical nature, including slapping, hitting, restraining or confining an elder, overmedicating or giving improper medication;

Abuse of sexual nature – includes a caregiver forcing an elder to watch or participate in sexual acts;

Abuse of psychological or emotional nature – can be very subtle when employed by a manipulative or cunning family member or care provider;

Neglect of an elder can occur when a caregiver fails to actively or passively fulfill the role of caregiver (paid attendant or unpaid family member) or when an elder self-neglects.

The Adult Protection Services – APS for short – is part of the Colorado Department of Human Services and they have broken their page into four basic categories: caretaker neglect; exploitation; physical or sexual abuse; and self-neglect.  But this offers a very broad brush approach of what to report!

There are other options available in addition to simply reporting suspected mistreatment, abuse or neglect.  One of these involves getting immediate and direct protection against an abuser by means of obtaining a civil protection order.  A civil protection order proceeding is in county court and is available to persons who elders (and at risk adults, those who have developmental disabilities or some other cognitive impairment) who are victims of abuse to prevent further contact by the alleged perpetrator of the abuse.  Read more about the instructions and forms available on the Colorado State judicial website here.

The JDF 402 form for a complaint or motion for civil protection order specifically lists “abuse of the elderly or at-risk adult,” and cites Colo. Rev. Stat. §26-3.1-101(1) and (7).  That latter section of the statute, which is the definitional portion of the “protective services for at-risk adults,” provides

(7) “Mistreatment” means:

                (a) Abuse;

                (b) Caretaker neglect;

                (c) Exploitation;

                (d) An act or omission that threatens the health, safety, or welfare of an at-risk adult; or

                (e) An act or omission that exposes an at-risk adult to a situation or condition that poses an imminent risk of bodily injury to the at-risk adult.

You can see that there is astatutory provision for mistreatment that comprises abuse in our state.  The term is broad and necessarily so.  Remember that the statistics used by the National Council on Aging indicate that elders who have suffered abuse have a 300% higher risk of death as compared to those who have not been mistreated.

The take-away for this post is that there is an immediately available remedy to stop the mistreatment of elders in the form of a civil protection order.  The county courts have the forms available and magistrates or judicial officers to review the complaints or motions for such relief against an abuser respond quickly.

For elders who are suffering mistreatment at the hands of an abuser, a civil protection order can prevent further harm and help to safeguard the elder’s health.  I believe that raising awareness of available remedies to stop further abuse of elders is an important step toward realizing the goals of WEAAD.

© 2017 Barbara Cashman  www.DenverElderLaw.org

The AHCA and Elders on Medicaid

Wahatoya Enshrouded

In this post, I am looking at what’s at stake for elders currently on Medicaid.  The AHCA or American Health Care Act (a/k/a Trumpcare) narrowly passed through the U.S. House, with twenty Republicans voting against it.  It faces more hurdles in gaining Senate approval, but the Senate is now considering the proposed law.

Medicaid is of course a government “welfare” program which came into being (along with Medicare) in 1965  when President Lyndon Johnson signed into law the bill leading to the establishment of both programs.  While many people think of the stereotypical mom and kids when they think of Medicaid – they were a primary source of concern for the original Medicaid program after all – there are many elders who are sick enough and poor enough to qualify for Medicaid.

How is the financial stability and well-being of elders on Medicaid threatened by this proposed law?

Colorado has been one of the many states in which “Medicaid expansion” has boosted enrollment in the insurance rolls of elders, the rural poor and other populations.  In Colorado, Medicaid is known as Health First.  The AHCA proposes, among many other huge changes, to move the funding to a “block grant” system in which each state will be given a grant for their Medicaid recipients.  Here’s a recent Denver Post article which discusses the impact of such a grant on Colorado’s budget.  Leaving the states to shoulder more of the Medicaid funding sounds like a good way to offload federal Medicaid as we know it, but it will change the landscape of health care services available to poor elders, particularly in rural areas, in ways we cannot foresee.  And I do not mean for the better!

How has the payment of health care services changed over the years?

I remember my father telling me about the circumstances under which my oldest brother was born in a hospital in Denver sixty-six years ago: the nuns weren’t happy with him because he couldn’t pay for my mother’s delivery (it was a bit complicated) with cash on the spot.  Yes, those were the “good old days” in many ways, when many Americans paid for lots of routine things (including the hospital stay for the birth of a child) out-of-pocket.  I found this colorful graphic from the California Health Care Foundation, which demonstrates how the source of health care payments have changed since 1960 through 2014.  If you want to look at some more color graphs, check out this collection of instructive slides in Louise Shiner’s pdf entitled Understanding the Slowdown in Heath Care Spending Growth.  In today’s “health care” environment, many of us need assistance for paying premiums, with getting needed prescription drugs and related items we couldn’t otherwise afford.  Long gone are the days when we routinely paid out of pocket for medical care!

So – who will pay for the elder’s medical care if Medicaid as we know it. . .  . disappears?

Based on information from the Medicaid.gov website, Medicaid provides health coverage to more than 4.6 million low income elders, nearly all of whom are also enrolled in Medicare.  Medicare has four basic types of coverage:

Part A: Pays for hospitalization costs

Part B: Pays for physician services, lab and x-ray services, durable medical equipment, and outpatient and other services

Part C: Medicare Advantage Plan (like an HMO or PPO) offered by private companies approved by Medicare

Part D: Assists with the cost of prescription drugs

Medicaid can assist low income elders in paying their insurance premiums and out of pocket medical expenses; it can also pay for additional services beyond those paid for by Medicare – like long term nursing care, prescription drugs, eyeglasses, and hearing aids.  Medicaid can often make a difference in providing the needed care or services by covering the shortfall from the difference in Medicare payment limits and the costs to the patient.

Here is a fact sheet from Justice in Aging which identifies what the “block grant” funding proposal would mean for elders on Medicaid.

Bottom line is that poor elders would receive less medical care or lower quality care as a result of the belt-tightening of the states providing those Medicaid services to their recipients.  People who have a period of ineligibility – like if they inherit a sum of money from a sibling or child – would not be able to re-qualify for future Medicaid services.

I don’t usually like to write these kind of “scary” blog posts, but as an elder law attorney I am deeply troubled by what might happen to some of the most vulnerable persons in our country (disabled adults) if the AHCA is passed.  I’m only mentioning in passing that Medicare premiums will rise – remember those tax cuts in the AHCA have to land somewhere!  Under the block grants, states will be free to retool their own stricter rules and I would imagine that some states will be looking to filial responsibility laws for shifting their burden to requiring the children to pay.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Dementia, Fear and Aid in Dying

Sunset on an Artificial Lake

 

For this first post of June, I am revisiting a topic that has been discussed in previous posts: Alzheimer’s (or other forms of dementia) and the fear of aging.  Combining that volatile mix with the question of assisted dying presents a long list of novel questions.  The topic  was sparked by a phone call I received from someone residing in another state but who was looking for information about Colorado’s End of Life Options Act.  The specific query concerned the caller’s desire to explore options to end a spouse’s suffering from Alzheimer’s disease.  My response was fairly straightforward and I think the caller was a bit surprised by my candor.  I explained that under the Colorado law a patient or “qualified individual” was required to, among other things, have the capacity to give informed consent to the  receipt of the aid-in-dying medication to end the qualified person’s life.  See Colo. Rev. Stat. § 25-48-102(13) defining “qualified individual” and § 106(e) which concerns more details of the individual’s “informed decision.”

The caller was surprised when I explained that the only legislature which has to date considered expanding the aid-in-dying law to dementia patients was Oregon.  The Oregon Senate Bill 893 would allow for those persons otherwise qualified for administering receiving life-ending medications under Oregon’s Death with Dignity Act, except that the  patient who ceases to have capacity to give informed consent can still be given life ending medication if there is a specific advance medical directive which expressly authorizes an agent under a medical power of attorney to collect and administer the life-ending medication if the incapacitated person previously received a prescription for such medication.

Alzheimer’s Disease and other forms of dementia (here I will collectively refer to them as AD) are typically the most feared diseases of post-modern westerners who privilege their rationality (remember the Cartesian mantra “I think therefore I am”) and perceived autonomy over all else.  Further, our techno-medical way of examining aging, of parsing out different functions of one’s life ascribed to different body parts, leads us to believe that whatever form of cognitive impairment – age related or otherwise – might just be a part in need of fixing or a disease waiting to be cured. This type of reductionist thinking refuses to look outside its own narrow pigeon hole. In the meantime, those of us who do not perish will age in our own unique ways and many of us will struggle with its challenges.

Whose fear is it – and whose suffering?

What do we make of this fear of AD and fear of a person’s – er – a personality’s – disintegration?  I think in several important ways it is the same fear as the terror of dying, just a bit more latent and prolonged, and therefore more menacing than death for some people.  I’ll quote from Shakespeare’s Julius Caesar (III.i. 102-105) here, the conversation between Cassius and Brutus:

Cassius: Why he that cuts off twenty years of life

Cuts off so many years of fearing death.

Brutus: Grant that, and then death is a benefit:

So are we Caesar’s friends that have abridged

His time of fearing death.

There are many ways to respond to one’s own AD and to that of a loved one’s.  One way is to project our own fears onto the other person, who appears a shadow of the former self or as completely incapacitated.   But there is no standard response, even though some “conventional wisdom” (I use the term tongue in cheek here) might be welcomed by many who find the disease and its process most bewildering.  A slight detour here . . .

Bewilder is defined in the Merriam Webster online dictionary as (transitive verb):

1:  to cause to lose one’s bearings (see bearing 6c) bewildered by the city’s maze of roads;

2:  to perplex or confuse especially by a complexity, variety, or multitude of objects or considerations His decision bewildered her. utterly bewildered by the instructions.

And what if we break down that verb into a command – be wilder, wild from the noun wild) to be:

1: A natural state or uncultivated or uninhabited region.

2: (the wilds) A remote uninhabited or sparsely inhabited area.

Now back to my topic. . .

My concern is that there are many faces of Alzheimer’s Disease just as there are many aspects to an individual’s response to a loved one affected by AD.  I am thinking particularly of a recent article published in Kaiser Health News, entitled “How to Help Alzheimer’s Patients Enjoy Life, Not Just ‘Fade Away,’” and you can read that here.  The fact remains that each person is affected by AD is his or her own way and the “preoccupation with the cerebral pathology” (which the psychiatrist Dr. David Rothschild criticized in his 1936 paper on the psychodynamic model of senile dementia) often serves to fan the flames of fear and anxiety over our collective preoccupation with the losses of aging.  There are many other paths to choose here – not just the one of least resistance which is fear based.

© 2017 Barbara Cashman  www.DenverElderLaw.org