Elder Law & Estate Planning Current Developments Archives - Page 2 of 8

The AHCA and Elders on Medicaid

Date June 8, 2017

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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.

JeffCo Senior Law Day is June 3, 2017!

Date May 25, 2017

Posted by Barb Cashman

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The Rialto Bridge at night

May is National Elder Law Month! So – for the last post of this month I wanted to mention this important detail.

The event I’m participating in to observe elder law month, however, is next month . . . the Jefferson County Senior Law Day is coming up on June 3, 2017. More information about it is here including registration information.

There will be twenty-four separate presentations on more than twenty different topics, beginning at 9:00 a.m. and concluding at 1:45 p.m. I will be presenting on the topic “Managing the Challenges of Later Life Remarriage.” Last year at this Senior Law Day (there are a few different locations in the front range area, click here for more details on the Colorado Bar Association website) I presented on a similar topic. Mine is a relatively new topic but is one about which many people have questions.

If you can’t attend this Senior Law Day and are looking for reliable information resources, you can click here to download the 2017 Colorado Senior Law Handbook, published by Continuing Legal Education in Colorado.

Planning for Aging

Date May 18, 2017

Posted by Barb Cashman

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Florentine graffiti… what me worry?

How does one assess the value of planning for one’s retirement, potential incapacity and/or eventual demise? That is a very personal assessment, notwithstanding that the failure to plan has enormous financial consequences – for the individual, their loved ones and society as a whole. Perhaps a prime and popular example is the failure to make advance heath directives – including appointing an agent under a health care power of attorney and signing a statement of end of life wishes – a/k/a a living will or in Colorado the Declaration as to Medical Treatment. Read here for more useful information from the Colorado Advance Directives Consortium. Many of us, perhaps most, would rather not entertain the idea that our lives will eventually change. Our lives change every day, but whether we mark those changes is up to us!

“In the beginning is relation”

This famous quote by philosopher and theologian Martin Buber is a favorite of mine. In my line of work relation and relationships are keys to planning and realistically assessing how far one can plan as well as the extent to which we must rely on others to assist us in the execution of our planning.

Aging and planning can give us the space to reflect on our values, what has been and remains important to us, and planning can also take much of the burden off our loved ones in the event we face a health crisis during we might be unable to make decisions.

I recently came across Sharona Hoffman’s 2015 book “Aging With a Plan,” and found it very insightful. Hoffman is a law professor and, like many of us who practice in elder law, has life experience with an aging and frail parent. She uses that experience, along with a systematic big picture discussion of a realistic conversation to consider all the alternatives in making plans for one’s aged self.

Many of us assume that, if we have lived in our home independently for 30+, we would never have an intention of leaving that space of storied independence and autonomy. I note here that many elders (I’m including a number of clients and others) are coming to understand that there are good and workable alternative options for housing and community involvement that can nourish and sustain one’s basic human need to be part of a community and to contribute to that community.

I liked Hoffman’s approach to her book because it is founded on the importance of maintaining relationships, through social interaction and being useful (at whatever level). The latter, being useful and having something or someone to take care of, is a fundamental premise in the “green house” nursing home alternative. You can read about that in an article here from the Atlantic Monthly, or more about Dr. Bill Thomas in a 2016 Washington Post article. But I don’t want to get off track in talking about “green houses” . . . .

So what are the components of a plan for aging? We are all familiar with retirement planning (even if the majority of us barely engage in such planning) and its focus on finances. I think part of the repulsion in retirement planning is the focus on finances, many people simply find the savings part a difficult conversation and so stop before considering other aspects of retirement planning or aging with a plan. I consider neither of these often heard comments a plan: “X will never happen to me because my family doesn’t live that long;” or “if I can’t go to the bathroom or feed myself on my own, then just shoot me.” We still don’t understand the role of genetics and epigenetics on the aging process very well and not deciding this very grown-up matter of “what happens if” means that we are shirking the responsibility be forcing someone else to choose for us…..

I recommend Hoffman’s book – it’s easy to read and its focus on several practical concerns including: finances; elders driving; person-centered (not disease-based) health care; and the importance of an exit strategy; demonstrate that the book is very useful – for an elder or elder-in training, or for an elder’s family member to assist with the awkward place of overcoming years of inertia.

Caregiving is Not for Sissies!

Date March 15, 2017

Posted by Barb Cashman

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Sideways Sky

In my latest issue of Bifocal, the bi-monthly publication of the American Bar Association’s Commission on Aging, I noticed a helpful new resource entitled Ten Legal Tips for Caregivers. Here’s a link to the document. In case you’re wondering who that “typical” family caregiver is, a recent New York Times article written by a resident physician, identified her as

a 49-year-old woman caring for an older relative — but nearly a quarter of caregivers are now millennials and are equally likely to be male or female. About one-third of caregivers have a full-time job, and 25 percent work part time. A third provide more than 21 hours of care per week. Family caregivers are, of course, generally unpaid, but the economic value of their care is estimated at $470 billion a year — roughly the annual American spending on Medicaid.

The comments section of this NYT article is both telling and heart wrenching, as there are so many stories of people who recount many of the article’s observations that this massive group of volunteer caregivers put themselves at risk in ways from which it may be difficult to recover. There is the great financial risk, cutting back on work in order to care for an elder parent. This financial strain is measurable but probably the more disturbing numbers comes from other studies concerning the lingering health effects (like depression, anxiety and chronic disease) of extended caregiving. A JAMA article from 1999 entitled “Caregiving as a Risk Factor for Mortality: The Caregiver Health Effects Study” quantify the heightened mortality rates of caregivers.

So, enough of this gloom and doom, eh? Don’t let me get started on how this volunteer army’s numbers will be forced to multiply dramatically in the event the Affordable Care Act, with its Medicaid expansion services which many seniors now enjoy, is repealed. Considerable portions of the Medicaid programs for elders will likely simply disappear under the block grants which could replace the ACA’s funding of these programs, which has taken several years to put in place. Changes to Medicare from the proposed legislation known as the AHCA could compromise Medicare’s viability in a shorter time frame. That’s another blog post!

Olay, so what steps can a caregiver take to protect themselves legally? The tip sheet identifies ten different steps or competencies which the caregiver can utilize to better assist the elder for whom they provide care as well as to protect themselves:

Understand decisional capacity
Know what legal authority you have
Appoint a health care agent
Complete a financial power of attorney
Manage Social Security/ Veteran’s benefits
Know your rights of access to health care information
Know the signs of abuse, neglect and exploitation
Know your rights if you face Family Responsibilities Discrimination (a form of employment discrimination)
Understand your rights under the Family and Medical Leave Act (federal legislation)
Consider a Personal Care Agreement (to counteract some of the financial losses described above)

This tip sheet, like other public resources made available by the American Bar Association, contains useful and helpful information. It is a welcome reminder for caregivers that they should not wait until a health crisis to figure out the basics of how best to provide care for their elder. Making advance care arrangements and learning more about how to manage information and choices for another (using durable powers of attorney) can help take some of the anxiety out of the “what if’s” so many caregivers face on a regular basis. Turns out that taking care of the caregiver allows for better care to be provided for the elder who needs care. That’s all for now!

Fast facts about the Colorado End of Life Options Act

Date March 2, 2017

Posted by Barb Cashman

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Where the Light Comes In

Today I’m presenting on this topic at the biennial Advanced Elder Law Institute, put on by Continuing Legal Education in Colorado. It’s a two day program and I’m looking forward to it. One of the best things about being a lawyer is I am always challenged to learn new things, as the law is – just like the rest of us – in a constant state of change and development!

As you may be aware, Colorado voters passed ballot initiative 106 last November and after certification of the election results by our Secretary of State, the law went into effect when Governor Hickenlooper signed it (by proclamation, in accordance with Article V of the Colorado Constitution) on December 16, 2016. Colorado became the sixth state to have a physician assisted death law. Other states with such laws include Oregon (the first state to have such a law) and Washington, where voters approved the laws as ballot initiatives; as well as Vermont and California, with their laws being passed by their legislatures in 2013 and 2015, respectively. Technically, Montana is also one of these states (by virtue of a Montana Supreme Court decision) but it doesn’t have any regulatory means of providing physician assisted death.

The title of the Colorado statute is the Colorado End of Life Options Act (EoLOA), but the terminology used for the death-causing prescription is “medical aid in dying” (hereafter MAID).

Unlike most statutes originating as legislation in the Colorado legislature, there was no preparation time for easing into this new law. What are the implications of this?

Doctors have to get up to speed quickly on this new law. They hold considerable power in this new law – they make the determination whether a person qualifies under the EoLOA as “terminally ill;” is “mentally capable” to request the MAID, get and fill that prescription. Emergency rules had to be put in place by the Colorado Department of Public Health & Environment concerning the new law. You can read the rules and download a couple of the forms on the CDPHE site.

There have been a number of complications with this new law and its immediate enactment. The EoLOA is designed to cover all physicians and facilities unless there is a written policy notifying both patients and physicians of the facility’s policy to “opt out” of compliance with the law. One of the challenges with simplifying this complicated issue of MAID in the initiative is that the law makes MAID available but there is no guarantee that an individual will have access to such MAID. Several religious based systems opted out fairly early and there are other complications that have presented with other facilities. Here’s a Denver Post article which speaks to some of those challenges.

An individual’s access to MAID may depend on where one lives. Access may be more difficult in rural areas. A local rural hospital board explained their “opt out” policy as follows:

The law requires that hospitals opt in or opt out of the practice; participation by hospitals and physicians is voluntary. In December, YVMC’s Board of Trustees decided to opt out of participation in the End of Life Options Act at this time. This is due largely to the number of standards that must in place to meet both the requirements of the law and the needs of patients. The Board of Trustees, along with YVMC’s Ethics Committee, will continue to review the End of Life Options Act and will keep the possibility open to opt into the End of Life Options Act at a later date.

Because of this decision to opt out, patients are not permitted to self-administer medical aid in dying medication on YVMC’s premises, nor are employed or contracted physicians permitted to write a prescription for medical aid in dying medication for an individual who intends to self-administer medical aid in dying medication on YVMC’s premises.

Colorado is not the only state experiencing these difficulties. Here’s a recent NY Times article on aid in dying and access difficulties.

I’ll close with three “tips” regarding MAID and minimizing conflict at the end of life:

Talk to your doctor and find out what all of your options are
Talk to your family and loved ones about what you might decide to do
Don’t wait too long! The MAID process takes at least two weeks….

Colorado End of Life Options Act Vocabulary part II

Date February 9, 2017

Posted by Barb Cashman

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Strange Orchid

So this is the second post examining our new statute. Today I’m focusing on a couple of its provisions which provide an intersection which I find quite troubling. Let’s look first at C.R.S. 25-48-103. Right to request medical aid-in-dying medication

(1) An adult resident of Colorado may make a request, in accordance with sections 25-48-104 and 25-48-112, to receive a prescription for medical aid- in-dying medication if:
(a) The individual’s attending physician has diagnosed the individual with a terminal illness with a prognosis of six months or less;
(b) The individual’s attending physician has determined the individual has mental capacity: and
(c) The individual has voluntarily expressed the wish to receive a prescription for medical aid-in-dying medication.
(2) The right to request medical aid-in-dying does not exist because of age or disability.

Seems simple enough, but did you read (2)? This (2) is particularly interesting as it looks to be intended to try and minimize criticism from two quarters: First from elders and those who work for and with them (like yours truly) who can both understand the quality of life aspects of the availability of MAID to frail and vulnerable elders; and can also see the connection between “duty to die” (remember Gov. Lamm?) and a “right to die” based on . . . . a perceived (by others) quality of life and use of scarce resources. This statutory language provides no comfort for me. Secondly, this (2) is also a vain attempt to disqualify criticisms from the disability rights community (folks like Not Dead Yet,) who challenge equating “quality of life” and “loss of autonomy” with “dignity.”

If you think I’m exaggerating the concern with ageism and loss of dignity of elders inherent in this statute, then simply turn your attention to §25-48-116 (Immunities for actions in good faith) which states at (3):

A request by an individual for, or the provision by an attending physician of, medical aid-in-dying medication in good-faith compliance with this article does not:

(a) Constitute neglect or elder abuse for any purpose of law; or
(b) Provide the basis for the appointment of a guardian or conservator.

Can the really say this?!! Does the provision of these broad and sweeping statements pertaining to elders or the disabled address the underlying issue and concern about potential for coercion or exploitation? I don’t believe it does at all – in fact it points out the law’s weaknesses here. Yet the proponents of the initiative denied and discounted any concerns from those who would question putting vulnerable elders at risk of being coerced and exploited.

The statute’s attempt to preempt any claim that another’s encouragement or assistance (I can think of several different dangerous scenarios off the top of my head) or “helping” someone with availing themselves of MAID would not constitute elder abuse, coercion, undue influence, or some other improper activity is shocking to me. The fact remains that there are a lot of elders who are not in good health who could easily be convinced to use MAID. Will the doctors be sensitive to this? Will they have the training and the resources to detect the “big picture” of what an exploiter may be attempting to gain from an elder who is simply trying to use MAID? These questions trouble me.

A recent case before the European Court of Human Rights (ECHR), Gross v. Switzerland, involved a Swiss national who sought physician assisted suicide on the grounds that she was old and adversely affected by the continued decline of her faculties. Previous ECHR decisions concerned the assisted suicide for persons who were seriously ill. Turns out there was a Swiss woman who did not have a serious illness but she had simply grown tired of living in her octogenarian body.

The concern about aging and quality of life is real and not imagined, especially based on this (quality of life) being one of the top reasons for Oregonians choosing death. It reminds me of the statistics about victims of elder abuse – that they tend to have their lives shortened by such abuse. Our statute would seem to affirm that the life-shortening on quality of life grounds is legitimate and simply a matter of one’s own “choosing.” It validates what many of us suspect, that if things don’t look like they will get any better for us, we might as well give it up and cut our losses. I’m thinking of a well written New Yorker article from June 22, 2015 entitled “The Death Treatment: when should people with a non-terminal illness be helped to die?” I’m back to my concern stated in my previous post about the power we have given over to our doctors, who now determine whether a person suffers from a terminal illness and is otherwise entitled to seek MAID. In Colorado, our law defines self-administration, but the statute has no explicit requirement that an individual self-administer. We don’t have to “jump” to any conclusions here – the path is just a baby step from self-administration to administration with some assistance.

So if we only think there exists a requirement of self-administration, then the line between a doctor prescribing MAID and the “delivery” of the drugs either through self-administration or with assistance (albeit often in the guise of encouragement) of others is a thin one indeed. I quote from The New Yorker article here:

The laws seem to have created a new conception of suicide as a medical treatment, stripped of its tragic dimensions. Patrick Wyffels, a Belgian family doctor, told me that the process of performing euthanasia, which he does eight to ten times a year, is “very magical.” But he sometimes worries about how his own values might influence a patient’s decision to die or to live. “Depending on communication techniques, I might lead a patient one way or the other,” he said. In the days before and after the procedure, he finds it difficult to sleep. “You spend seven years studying to be a doctor, and all they do is teach you how to get people well—and then you do the opposite,” he told me. “I am afraid of the power that I have in that moment.”

I am concerned that what the End of Life Options Act appears to offer folks is freedom of choice, but it is really more about the giving away of more power to our doctors as well as making segments of our population even more vulnerable to coercion. More later!

Colorado End of Life Options Act – A Vocabulary Lesson

Date February 2, 2017

Posted by Barb Cashman

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A Threshold

I’m gearing up for a continuing legal education program where I’ll be presenting on this new Colorado statute [EoLOA for short, even if it sounds more like Hawaiian], so I’m now writing part of my materials. I thought I’d start with the basics in this post by looking first at how terms are defined (or not defined) in the statute as well as the parameters of the “right to request” life ending drugs. I will list the entire definitional section here, but due to space constraints, will focus only on a couple salient terms in this post.

Here’s an overview of some of the key terms in the statute’s definitional section, 25-48-102:

Adult means an individual who is 18 years of age or older;
“Attending physician” means a physician who has primary responsibility for the care of a terminally ill individual and the treatment of the individual’s terminal illness.
“Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness.
“Health care provider” or “provider” means a person who is licensed, certified, registered, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession. The term includes a health care facility, including long-term care facility as defined in section 25-3-103.7(1) (f.3) and a continuing care retirement community as described in section 5-6-203 (l)(c)(I), C.R.S.
“Informed decision” means a decision that is:

(a)Made by an individual to obtain a prescription for medical aid-in- dying medication that the qualified individual may decide to self- administer to end his or her life in a peaceful manner;
(b)Based on an understanding and acknowledgment of the relevant facts; and
(c)Made after the attending physician fully informs the individual of;
(I) His or her medical diagnosis and prognosis of six months or less;
(II) The potential risks associated with taking the medical aid-in- dying medication to be prescribed;
(III) The probable result of taking the medical aid-in-dying medication to be prescribed;
(IV) The choices available to an individual that demonstrate his or her self-determination and intent to end his or her life in a peaceful manner, including the ability to choose whether to:
- (A)Request medical aid in dying;
- (B) Obtain a prescription for medical aid-in-dying medication to end his or her life;
- (C) Fill the prescription and possess medical aid-in-dying medication to end his or her life; and
- (D) Ultimately self-administer the medical aid-in-dying medication to bring about a peaceful death; and
(V) All feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.
(6) “Licensed mental health professional” means a psychiatrist licensed under article 36 of title 12, C.R.S., or a psychologist licensed under part 3 of article 43 of title 12, C.R.S.
(7)“Medical aid in dying” means the medical practice of a physician prescribing medical aid-in-dying medication to a qualified individual that the individual may choose to self-administer to bring about a peaceful death.
(8) “Medical aid-in-dying medication” means medication prescribed by a physician pursuant to this article to provide medical aid in dying to a qualified individual.
(9) “Medically confirmed” means that a consulting physician who has examined the terminally ill individual and the terminally ill individual’s relevant medical records has confirmed the medical opinion of the attending physician.
(10) “Mental capacity” or “mentally capable” means that in the opinion of an individual’s attending physician, consulting physician, psychiatrist or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.
(11) “Physician” means a doctor of medicine or osteopathy licensed to practice medicine by the Colorado medical board.
(12) “Prognosis of six months or less” means a prognosis resulting from a terminal illness that the illness will, within reasonable medical judgment, result in death within six months and which has been medically confirmed.
(13) “Qualified individual” means a terminally ill adult with a prognosis of six months or less, who has mental capacity, has made an informed decision, is a resident of the state, and has satisfied the requirements of this article in order to obtain a prescription for medical aid-in-dying medication to end his or her life in a peaceful manner.
(14) “Resident” means an individual who is able to demonstrate residency in Colorado by providing any of the following documentation to his or her attending physician:
- (a)A Colorado driver’s license or identification card pursuant to article 2 of title 42, C.R.S.;
- (b)A Colorado voter registration card or other documentation showing the individual is registered to vote in Colorado;
- (c)Evidence that the individual owns or leases property in Colorado; or
- (d)A Colorado income tax return for the most recent tax year.
- (15)“Self-administer” means a qualified individual’s affirmative, conscious, and physical act of administering the medical aid-in-dying medication to himself or herself to bring about his or her own death.
- (16) “Terminal illness” means an incurable and irreversible illness that will, within reasonable medical judgment, result in death.

So here goes . . . this law is only for adults! There is no provision for minors as is allowed in some European countries, like Belgium. Next, you’ll note that the physicians (they must be licensed M.D. or D.O., no N.P. or P.A. allowed) have a huge amount of responsibility. Remember that the gist of this law is to remove the threat of criminal prosecution for assisting a person to die by prescribing life-ending drugs under certain proscribed circumstances, so this focus on the doctors is wholly appropriate.

The two basic types of physicians are the attending and the consulting. The attending physician is the one who has primary responsibility for the care of the terminally ill individual. We are familiar with the phenomenon of the “pot shop” doctor here in Colorado . . . well this provision is designed to ensure that the attending is not someone who simply provides the scrip for the life-ending medication or “medical aid in dying” [hereafter MAID] as the statute calls it.

The attending physician must “fully inform” the individual of the diagnosis, prognosis of six months or less; as well as the choice (see (5) (c) above) and consequences of requesting MAID as well as the alternatives including additional treatment, palliative care and hospice care. Unfortunately for us, the terminology used in (5) is “informed decision,” which is a term foreign to Colorado law. In the statute it is tied to “mentally capable” in (10), which includes the ability to make and communicate an informed decision to health care providers. The Colorado term which is familiar to me is from the Colorado Medical Treatment Decision Act, at C.R.S. §15-8.7-102(7), which defines “decisional capacity” as the ability to provide informed consent to or refusal of medical treatment. A similar definition is found in the health care POA statute, at C.R.S. §15-14-505(4). The preceding section of that statute also states (at §15-14-504(4):

Nothing in this part 5 shall be construed as condoning, authorizing, or approving euthanasia or mercy killing. In addition, the general assembly does not intend that this part 5 be construed as permitting any affirmative or deliberate act to end a person’s life, except to permit natural death as provided by this part 5.

Interesting, huh? While reviewing inconsistencies between these terms describing capacity is something attorneys might get excited about, it appears unlikely to provide difficulties for the physicians involved. I will discuss the “mentally capable” determination a bit more in a later post that looks at mental health concerns. Likewise, the duties and responsibilities of the attending physician are numerous and I will continue the discussion of what the statute describes in a later post.

I will conclude this first post about statutory language with an observation. Death as described in the EoLOA is defanged, now a technical medical procedure, even a treatment if you will, for perceived intractable suffering. The option to seek out MAID to end suffering involved with a terminal illness has little to do with the physical pain incident to illness (statistics from Oregon bear this out) and more with the loss of dignity and quality of life, presumably incident to the progression of the disease. Why should an elder law attorney like me be concerned about this? Because in our culture, much of the experience of aging is focused on losses and precious little attention is directed toward gratitude for our continued life, such as it may be!

The other matter that concerns me greatly in the “technocratizing” of dying and actively choosing death is that we surrender even more power to our doctors. This has little to do with our perception of how medical technology is used to extend life, but rather is concerned with our thinking about the nature of life, including disease, dying and death. Our doctors cannot protect us from suffering – they are only doctors after all, but they can help manage treatment of pain.

More “vocabulary terms” next week.

When and How Should Someone Report Suspected Elder Financial Abuse or Exploitation?

Date January 26, 2017

Posted by Barb Cashman

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Safety in Numbers

My posts about reporting elder abuse remain my most popular among readers and since it’s been a while since I’ve written on the topic, I thought it was time! I get regular calls from people about this question, often from adult children who are concerned about what is going on with a parent. Plus, I listened to a webinar put on by the ABA last week about recognizing and preventing these scams. Today I’m focusing on federal programs and resources. Here’s a link to the US Department of Justice (DOJ) Elder Justice Initiative to get started.

Among the presenters at the webinar were a representative from the Consumer Financial Protection Bureau (CFPB) and a prosecutor from the US DOJ Civil Division’s Consumer Protection Branch. I mention these two federal resources because most of us tend to focus only on local or state law enforcement when it comes to reporting suspected financial abuse or exploitation of an elders. One other recent detail popped up on a listserve recently, reporting a scam concerning what was represented to be an “escrow company” to the victim and who told her they were assisting in the sale of her time share in Mexico. Apparently tens of thousands of dollars were cumulatively wired to the scammers, for the purported purpose of covering taxes and transaction fees. I searched online and found several posts about these types of scams that sound like perfectly legitimate businesses. One of these scammers was using the name of a legitimate Colorado business. Couple this with a scammer’s ability to “spoof” a phone number on the recipient’s caller ID, and it’s a pretty dangerously convincing mix!

The scammers are as familiar as the rest of us with the adage “if it’s too good to be true it probably is,” but some of these scams persist, coming in many new and different forms. The more troubling scam scenario however is the much more legitimate sounding scam, which doesn’t purport to be a “sure thing,” but instead rely on a common human tendency toward “in for a penny, in for a pound” behavior, or what economists refer to as sunk cost fallacy and psychologists call commitment bias.

Many of these scenarios involve mail fraud and wire transfers. Read a recent press release from the DOJ about actions concerning mail schemes targeting by foreign nationals. Last March, the CFPB issued an advisory and a report with recommendations for best practices for banks and credit unions on “how to prevent, recognize, report, and respond to financial exploitation of older Americans. Financial exploitation, the illegal or improper use of a person’s funds, property or assets, is the most common form of elder abuse and costs seniors billions of dollars per year.” The Advisory, which contains recommendations concerning the development of internal controls for the protection against and reporting of exploitation, training of staff to prevent , detect and respond to elder financial exploitation and using appropriate technology for the detection and reporting to local, state and federal authorities, is available here. The executive summary of the CFPB’s report begins with an important message:

Elder financial exploitation has been called the crime of the 21st century and deploying effective interventions has never been more important. Older people are attractive targets because they often have assets and regular income. These consumers may be especially vulnerable due isolation, cognitive decline, physical disability, health problems, or bereavement. Elder financial exploitation robs victims of their resources, dignity and quality of life—and they may never recover from it.

You can read more of the report here.

There are many ways that scammers defraud elders and some of these include Medicare, Medicaid and health insurance fraud (which is akin to a form of identity theft), IRS and tax scams, mail fraud and internet scams involving “sweethearts” and online dating, sweepstakes and lottery “winnings” and tech support scam. The Justice Department also has a helpful roadmap identifying what type of scam and which federal agency to which it can be reported.

One valuable thing for people to consider in reporting an incident of suspected elder financial abuse and exploitation is this: a single victim may not have suffered a devastatingly huge loss, relative to their life savings perhaps, and it may even have been a relatively small loss, but if it is multiplied among a range of victims nationwide, what the scammers take can amount to millions of dollars. This is why reporting remains critically important. We are charting new ground here as many facts and figures about the incidence and forms of elder financial abuse and exploitation remain unknown due to underreporting.

That’s all for now.

End-of-Life Options: Medical Technique Portrayed as a Right pt. 1

Date January 19, 2017

Posted by Barb Cashman

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Ketring Lake at Dusk

For the next few posts I promise to vary my topics a bit, so I won’t be writing solely on the new Colorado law and its implications. But for this post, I wanted to spend a bit of time on the “big picture.” I had the privilege today of spending the morning listening to Jennifer Ballentine’s thoughtful and informative presentation on the new law and what it means in practice and policy for healthcare providers and facilities. Many of the folks there were from the hospice and palliative care community, several different residences (skilled nursing facilities, assisted living facilities and continuing care retirement communities) were represented and of note were the attendance of several first responders (EMS or firefighters). Perhaps in a subsequent post I will delve into the dilemmas of EMS providers who may be unaware of a person’s use of life-ending medication under the new law (as they are sometimes unaware of do not resuscitate orders). Many different people in attendance with lots of challenging questions. But only some of those questions could be answered by reference to the new Colorado law.

The situation with the new law was an abrupt sea change. The day before this new law was certified by the governor all of these folks from their diverse communities were continuing to discourage very ill people from thinking and possibly acting upon suicidal thoughts and wanting to end it all. Once the law was certified, then BAM – all that changed. No easing into any transitional period as California and Vermont enjoyed (with their “end of life option act” and “patient choice at end of life” statutes respectively) . . .

I will try to steer clear of the pseudonymous quicksand of what these types of medical services provided are called: physician assisted suicide, physician assisted death, (medical) aid in dying, (voluntary active) euthanasia, death with dignity, but it is challenging when there is no clear marker of when living is perhaps coming to a close and dying is well-nigh. I liked one blogger’s beef with all these euphemisms and her suggestions that we perhaps call it “assisted self-administered lethal ingestion.” I think this descriptor is best because it is so technical sounding and our new law champions a medical technique, with precious few indicia or garb of a “right” to die.

To wind up, I will turn to a quote from the late poet, novelist and social critic James Baldwin:

Perhaps the whole root of our trouble, the human trouble, is that we will sacrifice all the beauty of our lives, will imprison ourselves in totems, taboos, crosses, blood sacrifices, steeples, mosques, races, armies, flags, nations, in order to deny the fact of death, which is the only fact we have.

James Baldwin, The Fire Next Time

How to identify the boundaries of death versus suicide – where are the distinctions here among all the different labels? Our new law does explain that the actions in accordance with the procedure set forth in the End of Life Options Act do not constitute suicide, assisted suicide, mercy killing, homicide or elder abuse. Does this move our conversation forward? Can a law do this?

Deathbed Ethics, Proposition 106 and Remembering How to Die

Date October 19, 2016

Posted by Barb Cashman

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Closed Shutters

We have forgotten how to die. We have forgotten that it is death, as part of our life, which makes us human. Death is just like the rest of our life – unpredictable and subject to constant change. That is what we have forgotten. We have become obsessed with our identity and being “in control,” in such ways that support our limited notions of autonomy. This is superficial, to say the least and I don’t think it has anything to do with preserving anyone’s human dignity.

In Proposition 106, physician assisted death (PAD) or physician assisted suicide is put forward as a “right” to be asserted by a limited and defined class of individuals suffering from a terminal illness who are not expected to live for more than six months. But wait, this sounds like qualifications for a hospice script – doesn’t it? Have people who are advancing the recognition of this “right to die” fully explored the parameters of hospice and palliative care? I think many have not. It is much simpler, much more straightforward and slogan-empowering to clamor for a right than it is to take a “wait and see” approach – which is what most of us end up doing anyway. Why do I bring up palliative and hospice care in this context? Because I think the need to advance any “right to die” here is superfluous to the already existing but not well-known by the public services of hospice and palliative care health professionals.

In my previous posts, I mentioned the 1997 U.S. Supreme Court decision of Washington v. Glucksberg, 502 U.S. 702, 737 (1997) and I want to follow up just a bit on that decision and its wake. I’m thinking particularly of Justice O’Connor’s concurrence, referring to pain management palliative and hospice care:

In sum, there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here.

The “right to die” in terms of PAD would appear to be promoted at the expense of the prospect of any effective management of pain. The further juxtaposition can be seen in these two articles by leading legal scholars: Robert Burt’s “The Supreme Court Speaks – Not Assisted Suicide but a Constitutional Right to Palliative Care,” in 337 New England Journal of Medicine 1234 (1997) and Erwin Chemerinsky’s “Washington v. Glucksberg Was Tragically Wrong,” in 106 Michigan Law Review 1501 (2008).

So why do I write another post about Prop 106? Because the “right to die” as it concerns a patient’s right to end their pain . . . is simply too misleading. Terminal pain management, about which most people want to believe this proposed legislation concerns itself – is another matter separate from “the right to die.” This is borne out by the Oregon statistics from 2015 which I referred to in my previous post.

Let’s set the record straight here. The information collected from Oregon about those persons choosing to fill the prescription for the life ending medications did so based on their diminished enjoyment of life, their loss of autonomy, and their perceived loss of dignity. A surprisingly small number of people mentioned “inadequate pain control” as a reason to choose assisted death from a physician. Why might this be that pain control factored in so small a number of responses? We don’t know because the statistics available don’t offer further information. But I think it is not a stretch to conclude that most of those folks choosing to get a scrip filled for lethal medications already had their pain pretty well managed, thanks to hospice or palliative care.

The real reasons for these folks to get the medications was to manage the psychic pain of living at the end of their life, in which their terminal illness compromised their ability to live independently, autonomously and with the dignity with which they had previously known. This is a qualitatively different kind of pain! This pain may be incidental to the “pain of dying” but it is most certainly a pain of living, living with the uncertainty of what challenges tomorrow will bring. We have simply forgotten this important detail!

What kind of patient autonomy do we want to protect as a matter of law and public policy? I think we need to be clear about what this law would change and how it would work, and not to be dazzled by the shine of a new “right” that has little to do with the context – medical, legal, ethical or psychological – of how such a right would be exercised. If this Prop 106 is really about saying it is okay to take one’s own life (I don’t even like saying “commit suicide” because it is fraught with moral implications that further perpetuate the underlying loss of the person’s survivors), then let’s be clear about that. I believe that is the implicit underlying message, but few people are comfortable with looking much under the surface of the legislation and its long-term unintended implications.

We are talking about the pain of living a life without the independence and autonomy to which we had grown accustomed and the terminal disease or condition robs the patient of that dignity of autonomy. I will be the first to state I am not equipped to decide for another when their terminal pain has reached such a level that palliative or hospice medications will not suffice to manage the pain. But I think the pain we are talking about is not the physical pain, which palliative and hospice care providers have become experts in managing, no we are talking about the pain of living a life, the end of which is one “we have not chosen.” It is implicitly stating – I do not want that challenge and I choose death instead. Let’s be honest about that choice and our ability to choose it!

In some important respects, Prop 106 presents essentially a right to die versus a right to hope. If we are in the midst of a terminal illness, rapidly advancing in its ravages of our bodies and our abilities to function independently, we are much less likely to give up hope if we feel supported, if we are not made to feel as if we are a burden on others. Here physician assisted death resembles the choices underlying suicide as they vary in number among different cultures across that world. Suicide has been characterized by Durkheim as related to sociocultural factors and in particular the integration of a person in family, economic, political and religious life. I posit that we ought to be looking to each other for assistance, for hope, especially in the face of imminent death, and not be so eager to show the door to those of us who feel they have become a burden or simply want to “choose death.”

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