This month we conclude our discussion on when physicians and elder law attorneys need to work together for the good of the client. Earlier in August, I discussed the issues of capacity, mistreatment of elders and self-neglect. This month we conclude by looking at the issues of cost of care and ability to pay, family dynamics and confidentiality. Let’s look at those situations:
4. Medical Payment Issues
An unavoidable element in obtaining appropriate medical and rehabilitative care for elder patients is assuring that payment for needed services is available. For most folks over age 65, this will mean working with the Medicare bureaucracy, your state’s Medicaid program and/or private insurance. A number of issues can develop that might threaten Medicare coverage for a patient’s services. This could jeopardize the continuity of that patient’s care and well-being. Some of the most common of these issues concern older patients who have entered hospitals through emergency departments and have been held in Observational Status rather than admitted as in-patients, as well as hospital discharge and re-admission practices that may jeopardize coverage for subsequent rehabilitation services. Another prominent issue involves the interpretation and application of Medicare rehabilitation payment policy regarding the standard of need for services rather than continuing potential for benefit.
Should these issues arise, the elder law attorney needs the assistance of the patient’s physician to provide and/or augment documentation, and to clarify and argue questions regarding the older person’s medical condition, needs, prognosis, and potential when payment eligibility turns on those factors. The physician and elder law attorney must cooperate to assert and advocate for the rights of the older person.
5. Family Issues
In many situations, professional services of the medical or legal variety provided to older individuals are necessarily entwined with issues within the family. Families often act as caregivers for older relatives lacking full independence. Looking at families functioning in that capacity, medical professionals are important in recognizing and pointing out problems of caregiver burden that may endanger both the caregivers and the person dependent upon their caring. The elder law attorney can advise the parties involved, including the patient’s physician, about public or private sources of financial or other kinds of support for family caregivers, such as any availability of benefits under the federal Family and Medical Leave Act, the Veteran’s Administration or Medicaid.
For older individuals with significantly reduced decisional capacity, family members may be acting as surrogate decision makers making choices on behalf of the elder or as helpers to a person who is capable of exercising supported decision making. In either event, when decisions concern medical care, the physician must be centrally involved in providing information and recommendations to the family, as well as supporting them in the decision making and implementation process. The elder law attorney may be involved in working with currently decisionally capable individuals and their families in the advance health care planning process, for example counseling them about health care power of attorney or living will options and helping the client-family unit to effectuate its wishes and values. The elder law attorney may be useful to the physician by helping to delineate legally empowered surrogate decision makers or to employ the legal system to clarify questions regarding legal authority. Tying in to the earlier discussion of self-neglect, the family may be confronted with an older loved one who refuses to acknowledge mental decline and the need for help. That family, and ultimately their loved one, may benefit from the delineation and possible pursuit of more or less intrusive options identified through the collaborative efforts of the physician and attorney.
Sometimes, families have interests that conflict with those of a vulnerable older person and they seek to act upon their own interests to the detriment of that older person. In those situations, the physician may be the one to call the problem to the attention of the individual’s attorney and/or provide contextual information about the conflict and its consequences. The attorney, in turn, may initiate legal action to protect the rights and welfare of the older person in a manner that also serves the ethical and legal interests of the person’s physician.
Intertwined with all of the issues already discussed are concerns about the permissible handling of personal information that the physician or attorney learns about a particular older patient/client solely as a direct result of the formal relationship between professional and older patient/client. For example, what are the confidentiality ramifications of a physician’s suspicion that an older patient is being neglected, exploited, or abused? The physician can educate the attorney about the kinds of healthcare information collected pertaining to a client, how and where that information is documented and stored, how to interpret the meaning of documentation, the clinical uses to which the information may be devoted, and who normally has access to that information (and under what circumstances). The attorney can educate and counsel the physician about the legal parameters of information collection, maintenance, and sharing under common law confidentiality principles, state statutes and regulations, and the federal Health Insurance Portability and Accountability Act (HIPAA), among other legal provisions. Enhanced inter-professional communication about confidentiality can be beneficial to the older patient/client. Accurately informed physicians and attorneys are well-positioned to protect the legitimate autonomy and privacy interests of older persons to whom they owe fiduciary duties, while at the same time facilitating the permissible and salutary transmission of relevant person-specific information to authorized recipients so that the continuity of service provision is optimized.
I have described some of the key needs and opportunities for physician/attorney cooperation and collaboration in contexts involving older patients/clients whom the members of the two professions both serve. It is incumbent on the medical and legal professions to take advantage of the available collaborative opportunities to serve both their own prudential self-interests and the ethical obligations that they owe their patients/clients as practicing members of learned professionals.