Health Laws Impact LGBT Folks

Impact of Health Law on LGBT Individuals and Families is the title and subject of a 1½ hour continuing legal education program to be held on Friday, October 12, 2012, as sponsored by the Allegheny County Bar Association, through its Health Law Section, in partnership with its LGBT Rights Committee, which was created in March, 2012.  Highmark underwrites the program.

A panel of experts representing perspectives from across the industry will present an assessment of the new federal healthcare reform law, FMLA [Family and Medical Leave Act], Advance Directives and Health Care Decision Making, and Hospital Visitation and Consent to Treatment for Minors and will discuss the impact of these laws on the LGBT community.

Much of this information will also apply to other non-traditional families.

This program will serve healthcare providers and their attorneys who need to be aware of the unique characteristics and challenges of LGBT individuals and families, as well as other nontraditional families, in the healthcare setting.

LGBT (lesbian, gay, bisexual, and transgender) folks, or individuals in "non-traditional" families, have drawn greater attention during the past twenty years.  In the healthcare delivery and decision-making settings, their personal expectations and interpersonal relationships often become ignored or overridden by application of statutes that grant "default" rights to others, defined by bloodline or traditional legal relationships.  

Awareness, forethought, and implementation are recommended for LGBT folks, their families, and their attorneys to overcome such hurdles.  Absent attention, planning, and documentation, an unwanted, unnecessary crisis might result.

On June 19, 2012, the federal Health and Human Services Department, through its LGBT Issues Coordinating Committee, issued its 2012 Report, entitled "Improving LGBT Health" (PDF form).  Its introduction repeated a national philosophy:

It’s at the heart of the American dream: the belief that if you work hard, if you're responsible in your community, if you take care of your family, then that’s how you should be judged.  Not by what you look like, not by how you worship, not by where you come from, and not by whom you love. 

This belief means ensuring that LGBT Americans have the same protections and opportunities as their neighbors, colleagues, and family members.  And over the last three years, this Administration has undertaken a broad agenda to do just that.”

That report highlighted two concerns, which should be addressed under Pennsylvania law at the ACBA's program:

Of critical importance for LGBT advocates is the CMS position on medical decision-making, allowing LGBT couples greater flexibility to make care decisions for their loved ones.

Similarly, it is important that LGBT patients and their families are more recognized in health care service delivery environments and approaches, including the development of a culturally competent service standard to be followed by healthcare professionals and organizations. * * *

The presenters at the ACBA program will be:

• Robert Wolf, Esq. (Advance Directives, POLST, Healthcare Decision Making) Tener, Van Kirk, Wolf & Moore, PC; 
• Elisabeth J. Poggi, Esq. (Advance Directives, POLST, Healthcare Decision Making) Buchanan Ingersoll & Rooney PC; 
• Sheryl Kashuba, Esq. (Hospital Visitation and Consent to Treatment for Minors) UPMC Health Plan; 
• Vikram Mangalmurti, Esq. (Accountable Care Act) VP Highmark Office of Healthcare Reform; and
• Mark Phillis, Esq. (Family and Medical Leave Act) Littler Mendelson, PC

The program will be held on Friday, October 12, 2012, in the ACBA Conference Center Auditorium, 920 City-County Bldg., 414 Grant Street, Pittsburgh PA, with registration and lunch from 11:30 AM – 12:00 Noon, followed by the presentations until 1:30 PM.

For ACBA members, the cost is $25, and for others, $60.  Registrations can be made online through the ACBA.

Organ Donation: Questions & Myths Discussed

On Friday, August 31, 2012, WITF-FM (Harrisburg, PA) broadcast a Radio Smart Talk program 50 minutes long, entitled What questions do you have about organ donation? 

The initial guest of host Scott Lamar was John Green, Director of Community Relations for the Gift of Life Donor Program, of Philadelphia, PA.  He first focused on questions and myths regarding organ donation.

For example, a study released earlier this year found that about a quarter of the respondents believed doctors wouldn’t try to save the life of someone designated as a donor.

Others thought that they couldn’t donate because they have a history of illness or that they were too old to donate.

About 80,000 people across the country are awaiting organ transplants. Some will die while they’re still waiting.

Later in the program, personal experiences were shared by a Middletown man who received a transplanted kidney, and by another Pennsylvanian whose son awaits a suitable liver transplant.

WITF's web page devoted to this particular program lists the following useful resources on the topic:

• Organ Tissue Donation Awareness Education Project - Intermediate Unit 13 (717-606-1795)
• Center for Organ Recovery and Education, of Western PA (800-366-6777 or 412-963-3550)
• Gift of Life Donor Program, of Eastern PA (800-366-6771)
• United Network for Organ Sharing (UNOS) (888-894-6361)
• Health Resources and Services Administration, Division of Transplantation (301-443-7577)
• Department of Health and Human Services, Organ Donation
• National Minority Organ Tissue Transplant Education Program (800-393-2839)
• National Coalition on Donation (804-782-4920)
• National Marrow Donor Program (800-627-7692)
• Donate Life-PA

Other resources are listed on the website of the Gift of Life Donor Program.

Title 20 (the Probate, Estates & Fiduciaries Code) of Pennsylvania statutes, authorizes organ donation upon consent or direction pursuant to unique provisions not parallel to, but similar in outcome to, the Uniform Anatomical Gift Act.

Many medical and humanitarian organizations actively promote organ donation here; and most religions sanction it under certain circumstances. See: PA EE&F Law Blog postings Organ Donation in Pennsylvania (06/14/07), Uniform Anatomical Gift Act in PA Someday? (06/20/07), and Religious Views on Organ Donation (09/11/08).

A need always exists.  Successful transplants renew other lives.  Listen to the program to find out why and how.

I am both a transplant recipient and a designated donor, so I support this movement.  To learn more about organ donation in a pleasant, informative conversation, listen to the program through an online link.

Filial Support of Indigent Parents in PA

On Tuesday, June 12, 2012, WITF-FM's Radio Smart Talk will host a discussion about the legal concept of "filial support" and its possible consequences for Pennsylvania's sons and daughters with aged parents who require care, but who can't pay.

"Filial" is defined by the Merriam-Webster dictionary as 1: of, relating to, or befitting a son or daughter, or 2: having or assuming the relation of a child or offspring.  

However, the concept of "benefit" to a son or daughter becomes reversed, if you add a duty of "support" under a state statute.  The result?  Adult children (if not abandoned in their youth) owe an ongoing duty of support to parents who have become indigent; and they must defend against claims by their parent's care-giving creditors in court.

On May 7, 2012, a three-Judge Pennsylvania Superior Court panel issued an opinion and order in Healthcare Retirement Corporation of America v. Pittas (PDF, 10 pages).  The ruling upheld a judgment rendered by a Lehigh County, PA trial court, against a son for his mother's unpaid debt of $92,943.41, owed to a institution for her medical and residential care.

The charges resulted from treatment needed after the mother was injured in a car accident.  The care extended six months before she withdrew from the facility, and then left the country.  The case at trial was decided while an application for Medicaid coverage was pending.

The Court's opinion noted the essential facts:

On or about September 24, 2007, after completing rehabilitation for injuries sustained in a car accident, Appellant’s mother was transferred to an HCR facility for skilled nursing care and treatment.  Appellant’s mother resided in the facility and was treated by HCR until March of 2008.  In March of 2008 Appellant’s mother withdrew from the HCR facility and relocated to Greece.

A large portion of the bills incurred by Appellant’s mother due and owing to HCR went unpaid.  As a result, on or about May 12, 2008, HCR instituted a filial support action against Appellant.  Pursuant to 23 Pa.C.S.A. § 4603, entitled “Relatives’ liability,” HCR sought to hold Appellant liable for the outstanding debt incurred as a result of his mother’s treatment and care.

The parties submitted the case to arbitration, whereupon a three member arbitration panel found in favor of Appellant.  HCR appealed the arbitration award to the trial court.  The trial court held a three-day non-jury trial, after which it entered a verdict in favor of HCR in the amount of $92,943.41. * * *

The Court referenced portions of the applicable statute, 23 Pa.C.S.A. § 4603 (unofficial version posted online by OneCLE), which provides:

(a) Liability. --
    (1) Except as set forth in paragraph (2), all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:   

        (i) The spouse of the indigent person.
        (ii) A child of the indigent person.
        (iii) A parent of the indigent person.

    (2) Paragraph (1) does not apply in any of the following cases:
        (i) If an individual does not have sufficient financial ability to support the indigent person.
        (ii) A child shall not be liable for the support of a parent who abandoned the child and persisted in the abandonment for a period of ten years during the child's minority. * * *

When is a person "indigent"?  The Court noted:

What it means to be “indigent” is not defined within the applicable statute. Therefore, in  applying Section 4603, our Courts have applied the common-law definition of indigence.    In  so  doing,  we  have  held that:     

the indigent person need not be helpless and in extreme want, so completely destitute of property, as to require assistance from the public.  Indigent persons are those who do not have sufficient means to pay for their own care and maintenance.  “Indigent” includes, but is not limited to, those who are completely destitute and helpless.  It also encompasses those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support. 

 Savoy v. Savoy, 641 A.2d 596, 599-600 (Pa. Super. 1994), quoting Verna v. Verna, 432 A.2d 630, 633 (Pa. Super. 1981). [Unofficial case links added.]

Any adult child whose parent is now, or might become "indigent", might be just an accident or medical emergency away from becoming liable for that parent's care under the cited statute and its application by the Pennsylvania courts in a debt collection lawsuit commenced by a creditor.

Concerns about the ruling were reported in an article entitled Pennsylvania Man Appeals to Court to Avoid Paying Mom's $93,000 Nursing Home Bill, by Susanna Kim, posted May 23, 2012, by ABC News.  Many readers' comments to the article reflect deep personal concerns and even anger.  See also: PA EE&F Law Blog posts "Filial Support" in PA? Really?!? (07/28/08); and PA's "Filial Responsibility" Law in the News (07/16/09).

On May 25, 2012, The Dickinson School of Law of Penn State University highlighted on its home page a link to a four-minute video presentation posted on YouTube, entitled Elder law expert Katherine Pearson explains new family support decision in PA and its policy issues.

A dramatic holding in a nursing home debt collection case by the Pennsylvania Superior Court "breaks new ground," explains elder law expert and Penn State Law professor Katherine Pearson.

In Health Care & Retirement Corporation of America v. Pittas, the nursing home obtained a judgment against an adult son for the cost of his mother's care with neither a contractual obligation nor "fault" on the son's part.

Professor Katherine C. Pearson briefly and conversationally addresses these questions in the video:

• What is the history of the filial support statute in Pennsylvania?
• What is so dramatic about the Superior Court's application of this law in the Pittas case?
• What are the consequences of this decision?
• What's wrong with requiring adults to support their parents?
• What other issues do you see?
• What policy questions does this case raise?

Katherine is an expert on "filial support" in Pennsylvania. She wrote a chapter on the topic, entitled Filial Support Obligations in Pennsylvania: Adult Children, Parents and Spouses, in the book, Elder Law in Pennsylvania (Jeffrey Marshall, ed., 3d ed. 2011), published by the Pennsylvania Bar Institute.

Just last Friday, June 8, 2012, she posted a more sweeping analysis of "filial support" laws online, including a comparison of each state's current laws.  Her article, which was accepted for publication by the University of Illinois School of Law's Elder Law Journal for its Fall, 2012 issue, is entitled Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents.  That academic paper (Abstract No. 2079753) can be downloaded from the Social Science Research Network (SSRN) free (32 pages, PDF).

In early April, before the Pittas decision was issued, Katherine gave an extended interview about "filial support", which was broadcast on the Australian radio show Encounter.

During the program “Dutiful Sons and Daughters” Professor Katherine Pearson discusses filial support laws trends in the U.S. during a panel dialog. * * * A recording of “Dutiful Sons and Daughters” is available on Radio National, the largest single network in the country. A recording of an extended interview with Pearson can be downloaded from Radio National’s website. * * *

Tomorrow's Radio Smart Talk presentation, during a fifty-minute discussion, likely will consider these questions and more.  I hope that Katherine will be a guest.  The program will be broadcast at 9:00 AM and again at 7:00 PM.  I will update this posting afterwards to include both a web link and a podcast link for the recorded presentation.

Update: 06/12/2012 @ 11:30 AM:

I guessed correctly:  Professor Katherine Pearson was one of the panelists.  The other panelist was a local professional colleague and friend, Attorney Jan L. Brown, of Harrisburg, PA.  The program, entitled Who is responsible to pay for long-term care?, broadcast from 9 to 10 AM.  It will be rebroadcast at 7 PM this evening.

A recording of the program is available now.  The discussion among host Scott LaMar, Katherine, and Jan can be heard online by downloading an MP3 file (20.8 MB) posted at this link: http://witf.vo.llnwd.net/o35/smarttalk/radiosmarttalk/RST_June122012.mp3. 

Katherine and Jan concisely explained the legal principles operating in the Pittas case (now the subject of an en banc reconsideration petition filed with the PA Superior Court).  They also placed it into the context of Pennsylvania domestic relations law.  Only Pennsylvania and South Dakota statutes and case decisions will sanction such third-party collection actions against an adult child for long-term care obligations incurred by an indigent parent, without considering situational "equities".

They addressed consequences and planning considerations for families of indigent long-term care residents.  The callers' comments ventured further, however, questioning fairness of responsibility for an estranged parent's medical care, oppressive debt collection efforts of institutions, and selective application by institutions.  Katherine also mentioned the cost of litigation in defending such claims, which alone can be staggering.

The discussion then focused on long-term care insurance.  Both federal and state governments have promoted LTC coverage for the past few years as a viable individual hedge against future inability to support long-term care.  

However, LTC coverage has become prohibitively expensive for the middle class.  Two major issuers -- John Hancock and Met Life -- discontinued their LTC offerings.

Even after an individual's purchase and ongoing premium payments, LTC insurance coverage might be revealed, when claim would be made, as unreliable or inapplicable.  LTC coverage, as a future source of support, may be a "bet" more than a "hedge", due to contract limitations, changes in medical services and billings, or illiquidity of an insurer.

Katherine and Jan considered many questions and offered some tips.  However, given flux in applicable law, distinctive facts in individual situations, processing complexities, and reduced government funding, there can be no definitive general answers regarding long-term care provisions, much less specific predictions as to personal financial liability.

I heartily recommend this program for listening by lawyers and laypersons alike.

"Closure": Change Expectations for End-of-Life

The Closure online multimedia educational project of the Jewish Healthcare Foundation, Inc., of Pittsburgh, PA, "is an initiative to change expectations for end-of-life." 

The Project's goal is "to empower consumers and healthcare professionals with easy-to-access, simple-to-understand information and resources to make educated decisions about end-of-life care."

No one wants to die. But the truth is everyone’s life will someday come to an end. It’s important to think about what you want, and what you want to avoid.

Closure is not going to make talking about death any easier. Nothing can do that. But our resources and tools will make the process of determining what you want at end-of-life less difficult and confusing.

The online presentations are professionally crafted, substantively accurate, seriously sensitive, and efficiently educational.

The Closure 101 Project offers "a curriculum of educational lessons dealing with an array of complex end-of-life issues."  The lessons cover issues arising from a medical diagnosis and treatments that may lead to decline and death.  How can we maintain dignity, respect, and love during such a stressful and demanding process that involves not only the patient, but a family and friends?

These lessons teach in twelve videos with slides, each introduced on that website:

1. Questions to Ask the Doctor -- People often have a lot of questions when they learn that they have a serious illness or that a loved-one has developed a life-threatening disease. Where should you start? What are the most important questions to ask? This lesson will help guide you through an open and honest conversation with your doctors.
2. Prognosis -- Many people with a chronic illness want to know exactly how long they have left to live. While no one can make an exact prediction, understanding your prognosis is very important in determining what treatments you want to pursue. This lesson will explain how to talk to your doctor about your prognosis and highlight what important questions you need to ask.
3. Decision Making -- There are many treatments which are often tried in patients with a serious, life-threatening illness to attempt to lengthen life. Sometimes these treatments are life-saving. Other times, these treatments may make little or no difference in how long or how well someone lives and may increase his or her suffering. This lesson highlights what decisions you may need to make and what to consider when weighing your options.
4. Advance Planning -- It’s important for you to plan ahead while you are healthy and able to make decisions about end-of-life. Planning ahead gives you the opportunity to get input from your family, doctors and religious advisors. This lesson explains why advance planning is important and teaches you how to complete a living will.
5. Hospice and Palliative Care -- Palliative care is appropriate for anyone with a life-limiting disease, including cancer, serious heart disease, end-stage dementia or lung diseases. It focuses not only on physical comfort, but also provides emotional and spiritual care. Hospice is a type of palliative care. This lesson clearly outlines the specifics of both options.
6. Medicare Hospice Benefit -- The original goal of the Medicare Hospice Benefit (MHB) was to support families caring for a dying relative at home, but that has evolved. The MHB now pays for medical, nursing, counseling and bereavement services to terminally ill patients and their families. This lesson outlines the key points of the MHB so that you can better access the services that you need when you need them.
7. End-Of-Life Care for Children -- Despite remarkable advancements in medicine, many children with a life threatening illness will die. In this lesson, you will learn about how and why the experience of serious illness and dying is different for children and see what solutions pediatric palliative care can offer in those situations.
8. Caregiver Stress -- Caring for someone who has become ill or losing a loved one that you were caring for can induce a stress response. We cannot make stress go away but we can change how our brain responds to it. This lesson introduces a series of healthy lifestyle behaviors and the techniques that will reduce the influence of stress on your mental and physical health.
9. Long Distance Caregiving -- Long distance caregiving has its own unique challenges. This lesson provides you with the tools to overcome those challenges. You will learn about available support and resources as well as new techniques to ensure that you are also taking care of yourself.
10. When Your Loved One is Dying -- Being a caregiver to someone who is dying can be a meaningful experience. But you may have a lot of questions about what to expect and how to care for your loved one. This lesson will help you gain a better understanding of the changes that are taking place and explain what to do if something goes wrong.
11. Grief and Mourning -- Death is part of the life cycle that will affect all of us in our lifetime. Grief is one of the most universal human reactions, yet it is unique to each bereaved individual and can be very isolating. In this lesson, you will learn the six tasks of mourning, uncover myths and symptoms surrounding grief and learn where to find support.
12. Religious and Cultural Issues -- Each religion or culture has its own way of dealing with the fear, moral uncertainty and deeper meaning associated with death and dying. This lesson will introduce you to end-of-life traditions from varying religious and cultural backgrounds.

I viewed most videos and recommend them.  There is no "religious" message or agenda promoted, despite sponsorship by a faith-oriented organization.  The lessons seem suitable for all faiths and cultures.

The website also offers a personalized Self Assessment to help customize and specialize online learning.  If you register, the website can retain logged user information to resume viewing sessions later.

These lessons could be the foundation for group teaching or discussion in a community or church setting.

The Closure website lists many valuable collections of resources, such as:

• National Resources: Quick links to useful Web sites and online tools that can help you broaden your knowledge about end-of-life care issues and aid in your decision-making process.
• Southwestern Pennsylvania Resource Directory: A comprehensive guide to resources about end-of-life issues for residents of southwestern Pennsylvania. 
• Helpful Tools: An index of important documents and tools for end-of-life planning that you can download and complete.
• Books and Manuals: A listing of books and manuals dealing with end-of-life care issues.
• Useful Terms: An online glossary of important terms and acronyms for patients and families.

These are valuable end-of-life coping resources that should be made available to patients in treatment centers and hospice facilities everywhere in Pennsylvania.

"Aging in America" on HealthSmart

The half-hour program, HealthSmart: Aging in America, broadcast initially on WITF-TV (Public Television; Harrisburg, PA) on November 24, 2010, asks the question: "What does a senior citizen look like in today's world?"

This program's response:  "We all know someone who is over the age of 65 and living life to the fullest."  The program examines the demographic wave of new 65+ citizens, and then considers their lifestyles and challenges.

The HealthSmart series of broadcasts is produced and hosted by Keira McGuire:

WITF's Mid-Atlantic Emmy nominated, in-studio, locally produced 30-minute health show features the medical topics that are on everyone's mind.

Local experts give practical advice on how to beat the odds and live healthier and happier, everyday. And local survivors share their touching stories to help our audience understand various diseases and conditions. 

Intended to appeal to health-conscious viewers, HealthSmart targets anyone who is looking for practical "real life" ways to live healthier every day. The focus of the series is on useful information that can be incorporated into daily life. * * *

This episode about Aging in America highlighted the expanding class of new seniors:

Soon, the first of over 75 million baby boomers will begin to earn senior citizen status.  On the next episode of HealthSmart we'll talk to baby boomers about the future.  Are they planning to slow down?  How can they stay sharp as they age?  What should they know about Medicare? * * *

If you are interested in learning why the "baby boomers" comprise "one generation that seems to be redefining the rules of aging," then watch the program online.  The graphics are pleasing, the hostess is attractive, the factual background is simply presented, the interviews of professionals (like Penn State Professor Melissa Hardy and PA Department of Aging Secretary John Michael Hall) are insightful, and the glimpses into individual lifestyles of new-age seniors are inspiring.

The theme that I derive from the program -- consistent with the Baby Boomer generation's earlier theme sung by Bob Dylan -- could be "The Times They Are a-Changin'.  The program addresses emerging challenges and opportunities, magnified due to the size of the new Senior Class.

The program is now available online for post-broadcast viewing.  The series is underwritten by Capitol Blue Cross.

Come senators, congressmen,
Please heed the call.
Don't stand in the doorway.
Don't block up the hall.
For he that gets hurt
Will be he who has stalled . . . .

-- Bob Dylan

in The Times They Are a-Changin'

(January, 1964)

PA Health Department Posts New POLST Form

On November 16, 2010, the Pennsylvania Department of Health posted on its website a new standard form for Orders for Life-Sustaining Treatment (POLST), revised 10/14/10. 

The form was listed under the website's Quick Links, but does not appear to be the subject of any press releases or further highlighted bulletins.

The concept and implementation of physician-ordered life-sustaining treatment orders is discussed in detail on the national website of that movement -- POLST.org -- which maintains this paradigm:

The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by health care professionals to honor these wishes.* * * 

Effective communication between the patient or legally designated decision-maker and health care professionals ensures decisions are sound and based on the patient’s understanding their medical condition, their prognosis, the benefits and burdens of the life-sustaining treatment and their personal goals for care.

The state-by-state implementation map on that website now needs a change.  Pennsylvania should shift from the color grey (no program), to red (endorsed programs).

The Pennsylvania POLST form is explained generally by the Explanation that accompanies it:

Pennsylvania – Orders for Life Sustaining Treatment (POLST) is a medical order that gives patients more control over their end-of-life care. The POLST form specifies the types of medical treatment that a patient wishes to receive towards the end of life.

These medical orders are signed by both a patient’s physician, physician’s assistant, or certified registered nurse practitioner and the patient or the patient’s surrogate.

Completion of a POLST form is only a small step in the process of a patient’s decision-making, and it is critical that this form be used as part of a program for end of life decisions that includes educational support and other aspects of planning for providers and patients.
 
This form was developed by the Pa. Department of Health’s Patient Life Sustaining Wishes Committee and was designed to be consistent with Pennsylvania law. There are significant advantages to using a form that contains standardized language and is produced in a distinctive and easily recognizable format. 

In order to maintain continuity throughout Pennsylvania, please follow these printing instructions: 

*** Print POLST form on 110# Pulsar Pink card stock. ***

 
See additional instructions on the POLST form related to completing and using the form.
 
As additional educational materials are developed for the POLST form and for POLST programs in Pennsylvania, they will be added to this introduction.

In recent years, the Department of Health has actively addressed end-of-life issues affecting Pennsylvanians through study groups and reports.  See:

• End of Life Experiences in Pennsylvania -- A Background paper (May, 2005; PDF, 38 pages); and
• Improving End-of-Life Experiences for Pennsylvanians (2006; PDF, 40 pages) -- Report and Recommendations to the Governor by the Task Force for Quality at the End of Life.

A new POLST form for Pennsylvania was contemplated by the most recent study report, End-of-Life Care in Pennsylvania -- Final Report (2007; PDF, 121 pages), which attached as Appendix "F" the POLST form used in Oregon, which has become standardized nationwide.

The new Pennsylvania POLST form is virtually identical, except for layout and explanations, to the sample form contained in the 2007 Final Report.

Administrative issuance of a POLST form for Pennsylvania was authorized by Act No. 169 of 2006, effective January 29, 2007 (replacement Chapter 54 in the PA Probate, Estates & Fiduciaries Code), pursuant to its Section 5548.

The new POLST form is not the same as an Out-of-Hospital Do Not Resuscitate Order authorized by Chapter 54 of the PA  PEF Code (as explained by the PA Department of Health); nor is it, alone, a Health Care Directive under Chapter 54 of the PEF Code (as explained by the Pennsylvania Medical Society).  See: PA HealthCare DecisionMaking website; "Understanding Living Wills and DNR Orders" posted by the Pennsylvania Patient Safety Authority.  However, a POLST Order could be used in conjunction with both, or either.

End-of-life decision making is a difficult, emotional subject.  On November 8, 2010, an article entitled Facing death: Questions to consider when making medical decisions, by John Luciew, was posted by the Patriot News (Harrisburg, PA).  He addressed this topic using source material from the Pennsylvania Medical Society's Family Health & Wellness website, which had not yet referenced the pending POLST form.

The law and medical privacy rules consider friends and non-married companions less than “real” family.

In order to involve them in one’s own medical decisions, specific legal declarations must be made. These are known as advance health care directives, or simply, advanced directives.

There are two main types: a health care power of attorney and a living will. Most people should consider having both. * * * 

Here are some questions to consider when making advance directives:

• Who would you trust to follow your wishes? Who can make tough choices? Who is willing and able to serve as your health care agent?
• How you would like to be cared for if you can no longer speak for yourself? What life-sustaining treatment and other care you would want at the end of your life?
• What personal wishes and values do you want your health care agent to consider when making decisions about your care?

Perhaps it is the emotional aspects that explain the Department's low-key implementation of the fairly standardized POLST form in Pennsylvania.

Now there is another mechanism through which such medical treatment preferences and directions can be memorialized and then  implemented in Pennsylvania.  It will change the way end-of-life decision making will be conducted.

Updated: 11/19/10:

My friend, Attorney Robert B. Wolf, of Pittsburgh, PA, noted my posting in one of his P&T Hot Tip Emails, which was reposted online by Smithfield Trust Company.

Bob served on the group that prepared the new PA POLST form:

I was privileged to serve on the Patient Life Sustaining Wishes Committee, and to work with leaders in Pennsylvania, such as Dr. Judy Black and Marian Kemp of Highmark and David Barnard, of the University of Pittsburgh in this effort.

He advised further:  "We are currently working on educational materials for healthcare providers, and after that for patients and families."

For a comprehensive list of currently-available POLST resources, see: Resources: Pennsylvania Physician Ordered Life-Sustaining Treatment (POLST), posted by the University of Pittsburgh's Institute on Aging.

End of Life: Concerns & Costs

Last week Elwood Raber, an uncle of my wife and a long-retired science teacher, died at 86 in the Masonic Village in Elizabethtown, Pennsylvania, after his body finally shut down in slow motion, like a clock not wound -- an agony for relatives to witness while recalling active times. The health care providers and hospice servants steadied that process with awareness, knowledge, and connection. In some ways, he was blessed while dying.

Twelve years after publication of a definitive study, with recommendations, by the Institute of Medicine, entitled Approaching Death: Improving Care at the End of Life (12/01/98, 437 pages), there have been many advancements in multi-faceted care provided to those who are dying, and tangentially to their loved ones. You can read the entire report and recommendations online, free. See also: When Children Die: Improving Palliative and End-of-Life Care for Children and Their Families (07/25/02), and Describing Death in America: What We Need to Know (04/07/03), both issued by the National Cancer Policy Board.

Florence Wald, once Dean of the School of Nursing at Yale University, started the hospice movement in the United States in 1971, which now has grown to over 3,400 hospice organizations nationwide. See: Hospice founder leaves legacy (11/28/08) by Florence Dethy, published by the Yale Daily News.

Her Alma Mater, Yale University, through its medical, nursing, and theological graduate schools, has offered courses for inter-disciplinary, specialized study about all aspects of dying. See: End-of-Life Care Gets Emphasis in New Yale Curriculum (06/28/08), published in the Yale Bulletin.

The Yale School of Medicine has worked with the Schools of Nursing and Divinity, Yale Religious Ministries, and the Palliative Care Services of Yale-New Haven Hospital to develop an interdisciplinary program that will focus on symptom management, culture and spirituality, and the importance of a multi-disciplinary team approach to patient care. * * *

Still, the issue of cost expended in the treatment of those in a dying process remains largely unaddressed, because traditional medical services to those likely to die remain uncontrolled for the majority of Americans.

The staggering costs of end-of-life medical services were considered in an article originally posted Nov. 22, 2009, and updated on August 6, 2010, by CBS online in conjunction with a 60 Minutes video report (broadcast on Sunday, August 8, 2010), entitled The Cost of Dying: End-of-Life Care Patients' Last Two Months of Life Cost Medicare $50 Billion Last Year; Is There a Better Way?

Last year, Medicare paid $55 billion just for doctor and hospital bills during the last two months of patients' lives. That's more than the budget for the Department of Homeland Security, or the Department of Education. And it has been estimated that 20 to 30 percent of these medical expenses may have had no meaningful impact. Most of the bills are paid for by the federal government with few or no questions asked.

Now you might think this would have been an obvious thing for Congress to address when it passed health care reform, but as we reported last November in the midst of the debate, what use to be a bipartisan issue has become a politically explosive one - a perfect example of the rising costs that threaten to bankrupt the country and how hard it is to rein them in.* * *

The future for many people who face death in hospitals is chilling, and so are the bills left behind:

[I]t costs up to $10,000 a day to maintain someone in the intensive care unit. Some patients remain here for weeks or even months; one has been there for six months.

"This is the way so many Americans die. Something like 18 to 20 percent of Americans spend their last days in an ICU," [Dr. Ira] Byock told Kroft. "And, you know, it's extremely expensive. It's uncomfortable. Many times they have to be sedated so that they don't reflexively pull out a tube, or sometimes their hands are restrained."

"This is not the way most people would want to spend their last days of life. And yet this has become almost the medical last rites for people as they die." * * *

While end-of-life patients are suffering from such therapies, medical resources become directed from progressive healing to simply sustaining, and the patient or relatives may not consider alternatives that may be more "multi-disciplinary" and personal.

After analyzing Medicare records for end-of-life treatment, Fisher is convinced that there is so much waste in the present system that if it were eliminated there would be no need to ration beneficial care to anyone.

Multiple studies have concluded that most patients and their families are not even familiar with end-of-life options and things like living wills, home hospice and pain management.* * *

My friend, Ron Grenoble, a kind, intelligent, and quiet man, had sent the link for this article to me earlier today in an email.

He highlighted one quote, noteworthy for him, and now for me too:

Dr. Byock . . . says "modern medicine has become so good at keeping the terminally ill alive by treating the complications of underlying disease that the inevitable process of dying has become much harder and is often prolonged unnecessarily. . . . This is a hard time in human life. But it's just a part of life," Byock said.

"Collectively, as a culture, we really have to acknowledge that we're mortal," he said.

Session on Patient/Client Health Care Decisions

On Thursday, April 22, 2010, from 4 to 6 p.m., a continuing education seminar entitled "Documenting and Implementing Patient/Client Health Care Decisions" will be presented at the Allegheny County Bar Association, in its Auditorium on the Seventh Floor of the City-County Building.

The sponsors are:

• Allegheny County Bar Association
  
• Allegheny County Medical Society
• University of Pittsburgh School of Medicine
  
• Heartland Hospice

Speakers include:

• Robert B. Wolf, Esquire, Tener, Van Kirk, Wolf & Moore, PC
• Judith S. Black, M.D., MHA, of Highmark Inc.
• Raymond C. Vogliano, Esquire, of Eckert Seamans Cherin & Mellott, LLC, as Moderator
  

This is the Agenda:

• Mr. Vogliano: 4:00 p.m .-- Introduction of Program
  

• Mr. Wolf: 4:05 - 5:00 p.m. --Legal and Medical Background of Medical Decision Making; The Impact of Act 169; The New Patient Health Care Representative;Drafting the Durable Health Care Power of Attorney & Living Will; and The ACBA/ACMS Endorsed Form (Choosing and Using the Right Form)
  

• Dr. Black: 5:00 p.m. - 5:45 p.m. --Defining the Role of the Physician Orders for Life-Sustaining Treatment (POLST); Framework for Exploring Patient Goals and Guiding POLST Decisions; and Recognizing and Promoting the Value of POLST in Assuring Patients’ Health Care Treatment Choices are Respected
  

• Panel: 5:45 p.m. - 6:00 pm -- Q & A; and Conclusion
  

The brochure notes the significance of the session in a one-sentence summary:

The program will provide continuing education credits for attorneys, physicians, nurses, nursing home administrators, and social workers in a first of its kind multidisciplinary seminar which will focus on the endorsed form of the ACBA/ACMS Health Care Power of Attorney and Living Will Form that is available to all professionals and the general public for free download from the Bar Association and Medical Society websites, and the Physician Orders for Life Sustaining Treatment or POLST form, which is a physician order that implements the treatment wishes of patients and is designed to portable from one care setting to another.

For those providers or advisers in Western Pennsylvania who have not attended a session over the past three years about the new Chapter 54 of the Probate, Estates & Fiduciaries Code, or want an update on the P.O.L.S.T. movement, this is a great opportunity. Registration is required.

MS-NBC's Olbermann on "Life Panels" & Living Wills

The Thursday evening, March 11, 2010, broadcast of Countdown with Keith Olbermann featured an update on his six months' long experiences with his ailing father and his plea for viewers to fill out an advance care directive, also known as a "living will," in his commentary, Life Panels Invaluable for Americans.

In his commentary the previous night, Keith described the medical procedures endured by his stoic father, who nevertheless reacted later:

"Help."

He is mouthing the word "help," over and over and over again. And I get his attention.

He is in full panic. Maybe the x-ray tech hurt my Dad's back, or touched those new chest drains — more likely he did nothing very much at all. But it was just too much for my father.

"Stop this," he mouths. "Stop, stop, stop."

And I say to him: I know for a fact they are not doing anything more to you tonight.

And he looks at me and starts thrashing his head again: "Help, help, help." * * *

Keith is his father's health care agent, and so he asks his father what he should do:

I get his attention again. I ask him: do you want me to stop all of this?

And he looks at me and mouths "yes."

And I ask him: you understand what happens then.

And he looks at me and mouths "yes."

And I ask him: you realize you are not terminally ill, and if we do stop all of this, it might not be quick.

And he mouths "stop this." * * *

But Keith is clear-headed and also aware of his father's wishes; and he advocates for his father to receive pain medication instead:

* * * I said, look, I'm his health proxy, we've had conversations about end-of-life care — we've had them in here, we've had them when he was home and well, I'm not operating in the dark here.

I said I think he really wants the one word he keeps mouthing: He wants help.

Is there any medical reason not to give him some sedation, a little mental vacation from being a patient? * * *

On Thursday evening's broadcast, Keith was talking instead about "Living Wills" as he pleaded with views to communicate their wishes about medical care in advance and sign a completed advance health care directive that also would name an agent to carry out those wishes.

Update: 03/13/10:

Sadly, on Saturday, March 13th, Keith posted on his baseball blog an obituary about his beloved father, entitled Theodore C. Olbermann, 1929-2010.

He did not mention how, or whether, his father's advance care directive was used, but his advocacy of it still shows its value.

"Charitable Giving: Past, Present & Future" at PSU's Hershey Medical Center

On Thursday afternoon, October 29, 2009, beginning at 4:30 pm, Penn State University and the Milton S. Hershey Medical Center, will hold a reception and then a one-hour presentation entitled Charitable Gift Planning at the Hershey County Club, in its Picard Grand Pavilion, 1000 E. Derry Road, Hershey, PA 17033.

The reception is hosted by Harold L. Paz, M.D., Senior Vice President for Health Affairs for Penn State, Dean of Penn State College of Medicine, and Chief Executive Officer of Penn State Milton S. Hershey Medical Center, and by Mark Faulkner, Esq., Partner, McQuaide Blasko.

The speaker will be me.

I will make a presentation for an hour (5:15 - 6:15 pm) entitled "Charitable Giving: Past, Present, and Future" tracing what has transpired, is happening now, and can happen in Hershey, Pennsylvania through charitable donations.

In nearly fifty PowerPoint slides, I borrow from etymology, world and local history, the Milton S. Hershey legacy, Professor Don Kelly's fine software program The Intuitive Estate Planner (now in Version 13, updated 10/13/09, published by Thompson-West), recent photos taken at Hershey Medical Center, the ten-year development plan for HMC, and my own recent experience as a patient in a similar medical system to consider the purpose and value of charitable giving.

I conclude that the greatest giving arises from the deepest appreciation of suffering and the strongest determination to remedy it beyond ourselves.

We lawyers draft documents to define purposes and uses of charitable gifts. Accountants count the income and estate tax savings accruing from charitable gifts. Investment advisors study the most appropriate holdings or income earnings of gifts in the hands of a charity. Development officers tout the merits of one institution or gift program over another.

But the real purpose of a charitable gift is to help others with the least fuss and the most effect.

In my recent examination of the great work, the good people, and the consistent mission of Penn State's Hershey Medical Center, I conclude that its facilities, research programs, and patient services are worthy objectives for charitable donations, small or large.

How I Survived My Summer Vacation

I have not posted on this Blog since July 20th, because I could not. Two days later, while on vacation in Ocean City, Maryland, I experienced a sudden and severe accident in the surf that resulted in emergency spinal surgery at the University of Maryland's "R. Adams Cowley Shock Trauma Center", in Baltimore. Since July 30th, I've been recovering at home.

The surgeon, Dr. Bizhan Aarabi and his associates, assure me that I should attain a full recovery, perhaps even enjoy better health than before the accident. This requires, however, that I continue to wear a protective cervical collar for another two months.

While so many politicians and patients lately question or criticize our health care system, I am one fortunate patient who was restored through it; and I am grateful.

On August 17, I sent an e-mail message to some folks, and I expressed this gratitude:

My 58th birthday was yesterday. It was very special. The present given to me was a new lease on life. I give thanks to G-D for my salvation & restoration into life here; to my wife, children, & siblings for their combined sacrifices & support at the Center and here at home; to the medical professionals and the insurance carrier for their care provisions; to the Firm and my co-workers for their understanding, faith, expectations, and support; and to my clients and friends, who have responded so caringly.

To my "biography" I can now add the comment "trauma survivor." I am one of the luckiest ones. I shall not forget the others.

Recently I joined online, as a "trauma survivor," the Trauma Survivors Network co-sponsored by three regional specialized trauma centers, as conceived by the Cowley Center in Baltimore.

The Trauma Survivors Network (TSN) is a community of patients and families who are looking to connect with one another and rebuild their lives after a serious injury.

The American Trauma Society (ATS), the leading organization advocating for the injured and their families, in partnership with hospitals around the country, is committed to growing the TSN by providing the programs and resources patients and families tell us they need to manage their recovery and improve their lives.

The underlying goal in all of these programs and resources is helping trauma patients and their families connect and rebuild their lives following a serious injury.

Now, I feel strong enough to resume some work efforts, including resumption of periodic postings to this Blog.

Future postings likely will include more consideration of catastrophic medical conditions, such as the one that touched me. None of us is immune from an accident that would radically alter our life; and none of us should forget those whose lives have been so altered.

New Cause of Action under FINRA Found

A decision issued on June 30, 2009, by a three-judge panel of the U.S. Third Circuit Court of Appeals, in Sarah Grammer v. John J. Kane Regional Centers-Glen Hazel (PDF, 23 pages), likely will impact nursing home and rehabilitation facilities that provide care subject to the Federal Nursing Home Reform Amendments (FNHRA).

The decision reversed a ruling by the United States District Court for the Western District of Pennsylvania, and, by its fresh interpretation of FNHRA, recognized new causes of action under those amendments to federal law.

The decision was noted by Professor Katherine C. Pearson, who is the Director of the Elder and Consumer Protection Clinic, of Penn State - Dickinson School of Law, and who now is Chair of the Elder Law Section of the Pennsylvania Bar Association. She sent me an email message with a link to her web article about the decision, and granted me permission to repost it. I do so now (reparagraphing & links applied), with thanks to her.

Should Federal Standards for Care by Nursing Homes be Enforceable
by Private Suits for Damages under Federal Civil Rights Laws?
The Third Circuit Says Yes.

by Katherine C. Pearson

Advocates for elders and disabled persons in nursing homes have long been frustrated by the absence of an express cause of action in federally imposed “Nursing Home Residents Rights,” a key feature of the Nursing Home Reform Act (NHRA) at 42 U.S.C. § 1396r.

On June 30, 2009, however, the Third Circuit Court of Appeals ruled in the case of Sarah Grammer v. John J. Kane Regional Centers-Glen Hazel that a private cause of action does exist under federal civil rights laws, at 42 U.S.C. § 1983, for violation of the resident’s rights under the NHRA. State action, necessary for a civil rights suit, existed because the defendant facility was a county-operated home.

In 1987, Congress enacted key nursing home reform laws in an effort to respond to widespread complaints about quality of care in facilities that were accepting Medicare and Medicaid dollars. Until that legislation, it was not uncommon to hear complaints about aged residents routinely being restrained in beds or chairs to prevent wandering, or being heavily medicated solely to make the residents easier to “manage.”

The Nursing Home Reform Act for the first time mandated that with the exception of emergencies, a doctor’s detailed, written order would be required before physical or chemical restraints could be imposed, and then only when necessary for the physical safety of the residents. The federal law mandated that facilities must care for residents “in such a manner and in such an environment as will promote maintenance or enhancement of [their] quality of life. . . .”

The legislation was widely hailed as ushering in a new era of accountability for institutional caretakers. But individual residents and their families have frequently questioned whether administrative sanctions for violations of the law, such as civil fines or threats of defunding, are sufficient to protect residents.

In the Grammer case, the complaint alleged breach of the duty to ensure quality care under NHRA standards, citing the death of Melviteen Daniels from poor care that resulted in malnourishment, decubitus ulcers and sepsis, and alleging the cause of action under 42 U.S.C. § 1983.

The District Court in the Western District of Pennsylvania dismissed the complaint for damages, finding no cause of action existed at law.

The Third Circuit reversed in a 2 to 1 ruling. In the majority opinion, Circuit Judge Nygard gives a detailed explanation of how the NHRA should be recognized as unambiguously conferring federal, substantive rights on residents to quality care, rights that are enforceable under federal civil rights statutes.

The dissent notes that the NHRA was enacted as part of an Omnibus Budget bill, pointing to Supreme Court decisions that have rejected attempts to infer substantive rights from “Spending Clause” cases.

The Third Circuit's decision in Grammer opens new doors for recovery on behalf of older adults and disabled persons in public facilities, including the potential for attorneys' fees for successful civil rights claimants.

The outcome also suggests a new question, whether privately-owned nursing homes are also subject to a civil rights suit for violations of NHRA-mandated standards of care. Are private owners operating under color of state law when they are certified as Medicare and Medicaid qualified facilities and accept public dollars for their services? At a minimum, does the existence of a federal cause of action against public facilities strengthen the argument by resident-advocates that violation of federal standards constitutes "negligence per se" for common law tort claims?

Another open question is whether mandatory arbitration provisions in nursing home admission agreements will be treated as limiting or barring courtroom litigation of federal civil rights claims.