Volume 5     Number 2     1997    

FOREWORD

Acceleration of Death of the Terminally Ill with Physician Assistance - Eugene F. Scoles

TRIBUTE

On Scoles - Wayne R. LaFave

ARTICLES

Elderly Immigrants: What Should They Expect of the Social Safety Net? - Leslie Pickering Francis

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) terminated federal benefits to many immigrants. The Balanced Budget Act of 1997 (BBA) only partially restored these benefits to select immigrants who lawfully resided in the United States before August 22, 1996. Professor Francis discusses how these statutory provisions particularly devastate elderly immigrants. Professor Francis questions the morality of the congressional policy to end immigrants' dependence on public welfare benefits by analyzing whether Congress's justifications, which rely on principles of self-sufficiency, nondependency , and nonencouragement , really apply to elderly immigrants. The author finds that the statutes' termination of federal benefits is immoral when applied to elderly immigrants first because it is unlikely to motivate the typical elderly immigrant to become self-sufficient. She then argues that PRWORA denies the legitimate expectations of elderly immigrants, their relatives, and their communities; PRWORA is unfeasible; it discriminates; and it is uncompassionate and unfair to elderly immigrants, their relatives, and their communities. The author argues that the BBA does not cure PRWORA's defects because it denies and does not accommodate the unforeseeable disasters that strike elderly immigrants. Professor Francis concludes that Congress should restore federal benefits to elderly immigrants, at least to the point of providing a safety net.

Semantics and Policy in Physician-Assisted Death: Piercing the Verbal Veil - Leslie Joan Harris

During the last twenty years, courts and legislatures have developed principles that allow individuals and their surrogates to refuse medical care, even when refusal will lead to death. This article traces these developments, from early cases concerning withdrawal of respirators and decisions not to treat fatal illnesses through withdrawal or refusal of artificial nutrition and hydration to the current debate over physician-assisted death. Throughout these developments, those who believed that the law should allow refusal of care have characterized the issue as a matter of personal autonomy, while their opponents have called refusal of care "suicide" and denial of care "homicide." This article traces the rhetorical battle from the early cases through the most recent Supreme Court decisions on physician-assisted death, showing that the rhetoric predicts outcomes but does not explain them. The rhetoric reveals one important set of issues that are at stake in these decisions - who should choose among the varying definitions of respect for human life and the role that law should place in this debate. However, the language obscures other important issues that should be figured heavily in deciding whether to allow refusal of treatment, as well as physician-assisted death. These issues include how power should be distributed between doctors and their patients and how much of society's resources should be allocated to health care.

NOTES

The Anabolic Steroids Act: Bad Medicine for the Elderly - Jeffrey Hedges

The rampant abuse of anabolic steroids, and their harmful side effects, prompted Congress to classify steroids as a controlled substance. The Anabolic Steroids Control Act makes it a criminal offense for a physician to distribute steroids to a patient unless in the treatment of a disease or other recognized medical condition. While this legislation controls steroid abuse among athletes and minors, it also prevents the use of steroids in treating some legitimate conditions. The inability to prescribe steroid treatments has had a direct impact on the elderly. Research suggests that the benefits associated with steroids, muscle growth and increased strength, help combat many of the illnesses and ailments associated with aging. However, further research in this area is useless if the treatments cannot be administered. In this note, Mr. Jeffrey Hedges explores the purpose and the effect of the Anabolic Steroids Control Act. He argues that although the legislation intended to prevent the abuse of steroids for nonmedical purposes, the expansive nature of the Act creates an unnecessary barrier to treating the degenerative effects of aging. Mr. Hedges suggests that the current legislation be amended to allow physicians to use their professional judgment in administering steroid treatment to the elderly. Only then might the revitalizing effects of a legitimate steroid treatment be fully explored and realized.

Strengthening the Older Americans Act's Long-Term Care Protection Provisions: A Call for Further Improvement of Important State Ombudsman Programs - Elizabeth B. Herrington

The problem of nursing home abuse is pervasive throughout the country. Nationwide, nursing home residents, as well as family and friends of residents, complain regularly about inadequate care. The federal government has recognized this severe problem and has attempted to address it legislatively through the use of ombudsmen. This legislation arose from the belief that an objective third party was necessary to monitor nursing home residents' care. Theoretically, the ombudsmen receive, investigate, and try to resolve problems or complaints affecting residents in long-term care facilities. Across the country, the role of the nursing home ombudsman varies substantially and reflects the policies established by the state program. Unfortunately, due to such problems as poor staffing and limited authority and autonomy, ombudsmen are not nearly as effective as they should be. In this note, Ms. Elizabeth Herrington proposes several changes to the current ombudsman program. She emphasizes that the federal government needs to establish a uniform documentation system to see the actual effects of the ombudsman program. In addition, Ms. Herrington asserts that because ombudsman program funding is from the federal government, additional statutes should be implemented to ensure residents in one state receive similar benefits as in another . She proposes that ombudsman programs should use in-house or outside legal counsel as their primary counsel for advice, representation, and consultation. Ms. Herrington also argues that by giving ombudsmen more authority and training and making other necessary improvements, the program will be an effective way to curb elder abuse in nursing homes nationwide.

The State Giveth and the State Taketh Away: In Pursuit of a Practical Approach to Medicaid Estate Recovery - Ion M. Zieger

In the wake of skyrocketing Medicaid costs, numerous states have instituted estate recovery programs to infuse additional capital into the failing Medicaid system. However, as the "baby boom" generation begins to gray, questions as to the intrinsic economic fairness and administrative efficacy of such programs emerge. After acknowledging the need to lessen the financial strain created by Medicaid, Mr. Zieger traces the disparate approaches to Medicaid recovery embraced by state governments, as well as finds the common denominator between such seemingly diverse programs. Mr. Zieger also explores the potential impact such programs may have on the elderly, including the impoverished elder who is unable to secure legal advice and the financially secure individual who opts to utilize estate planning as a means of sheltering assets. Moreover, Mr. Zieger points out the way that case law leaves unresolved the amount of assets the surviving family of the Medicaid recipient ultimately may receive from the decedent's estate. Finally, Mr. Zieger concludes by balancing the needs of the genuinely poor with the state's concern for fiscal stability. In balancing these competing needs, Mr. Zieger advocates limiting recovery to estates of a certain size, furnishing adequate notice so that potential Medicaid recipients may make informed decisions as to whether to accept or decline such assistance, and limiting the scope of the Medicaid recipient's estate by embracing the definition of estate as promulgated under state probate codes.

ESSAY

The Right to Live - Leigh B. Middleditch, Jr. and Joel H. Trotter

As medical technology has developed to enable doctors to keep incompetent patients alive on life-support systems, the legal issue relating to the authority to discontinue medical treatment has grown. In this essay, Messrs. Middleditch and Trotter address the right to live: the issue of whether a doctor should be able to discontinue the medical treatment of an incompetent patient against the wishes of the patient's guardian. Messrs. Middleditch and Trotter analyze three cases where doctors wanted to disconnect the life support system of an incompetent person against the wishes of the patient's guardian or family members and find that courts differ in their approaches to the problem. The authors hypothesize that the right-to-live issue stems partly from our culture's denial of death's reality, partly from our reverence for patient autonomy, and mostly from economic concerns. Finally, the authors describe several proposals advanced by those in the medical and legal community which aim to clarify and resolve right-to-live issues. These proposals include: that the medical community should deny treatment defined to be futile; that the presumption of treating persons in a persistent vegetative state should be changed to a presumption of not treating such persons; and, that limits on disproportionately expensive treatments should be acknowledged and defined.