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562 Geriatric Patients

prospective subject.”33 Thus, state law, even when ambigu- ous or unspecific, controls in this arena.34

A number of alternative possibilities for proxy decision- making in the research context have been identified. These devices include the durable power of attorney for research participation, reliance on family consent statutes, informal reliance on available family members as surrogate decision- makers, guardianship with specific authorization for research decisions, explicit prior court orders authorizing the incapacitated subject’s participation in research proto- cols on a case-by-case basis, an independent patient advo- cate supplied by the organization sponsoring the research or by a government agency, and selection of a surrogate by the institutional review board (IRB) or a long-term care facility’s resident council.

Some have suggested that special procedural safeguards are necessary to protect vulnerable, cognitively impaired human volunteers from injury due to research participa- tion. These safeguards might encompass heightened IRB involvement in the protocol approval process, enhanced IRB activity in the postapproval ongoing monitoring and supervision phase of the research, including serving as a forum for appeals and objections, and requiring individual participant assent (i.e., giving participants a veto power) even when informed proxy consent to research participa- tion has been obtained. An important question, especially since the participants of interest are mentally impaired, concerns the definition of assent to be used, namely, whether the failure to actively object to participation in a protocol is enough to be interpreted as a tacit or implied form of assent or whether some more affirmative indica- tion of agreement is necessary.


Medical care (acute and chronic) and long-term care35 for geriatric patients is financed through a crazy-quilt combi- nation of personal out-of-pocket payments, Medicaid (primarily for nursing facility care and home and commu- nity-based long-term care authorized under various state waiver programs), payments from private Medicare supple- mentary insurance policies purchased individually by the patient (i.e., “Medigap” policies), privately purchased long- term care insurance policies,36 and Medicare. The tradi- tional Medicare program, which was the only model available to Medicare beneficiaries until 1998, consisted of Parts A and B.37 Medicare Part A mainly pays for inpa- tient hospital care and Part B primarily covers physicians’ services.

A Medicare Part C was enacted by Congress as part of the 1997 Balanced Budget Act (BBA).38 This new program created the Medicare + Choice Program (MCP), which was available to pay for an array of private health insurance options for Medicare beneficiaries. These options included health maintenance organizations (HMOs), competitive medical plans (CMPs), provider-sponsored organizations (PSOs), medical savings accounts (MSAs), and private fee- for-service (PFFS) plans. Under the BBA and implementing

regulations, each eligible older and disabled individual was afforded the right to choose between remaining in federally regulated Parts A and B or enrolling in one of the Part C Medicare + Choice market-oriented options available in the individual’s local area. The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) renamed Part C “Medicare Advantage” (MA) and created as Part D new private prescription drug plans that went into effect in 2006.39 Part D beneficiaries can enroll in prescription drug plans (PDPs) and get all other Medicare benefits from the traditional fee-for-service (FFS) program, or they can enroll in MA plans, such as HMOs or regional preferred provider organizations (PPOs), that cover all Medicare benefits.40

Earlier explicit suggestions that certain aspects of med- ical care be rationed categorically according to a patient’s age41 have, in general, been soundly rejected in public pol- icy debate. However, there is evidence that medical care actually is rationed by age de facto, in the sense that older people in many circumstances are treated less aggressively than younger counterparts from whom they cannot be distinguished in terms of prognosis or other relevant medical criteria.42


Over the past three and a half decades, the field of elder law as a specialty of attorney practice has burgeoned.43 Educational institutions offer specialized courses and other learning opportunities in this sphere for both attorneys and other professionals, focused textbooks and practice handbooks have proliferated, journals have arisen, and national and state organizations (such as the National

Academy of Elder Law Attorneys)44 have developed and grown.

devoted to the field

The content of elder law is expansive. Matters falling within this area include, at least, advice to and representa- tion of older persons, their families, and physicians and other service providers regarding: Social Security retire- ment and disability benefits; other federal and state bene- fits; Medicare and Medicaid (including asset sheltering and divestiture for eligibility purposes); housing issues, finan- cial management (e.g., trusts), and estate planning; medical treatment decision-making and advance planning; judicial and nonjudicial forms of substitute decision-making; elder abuse and neglect; employment discrimination; and tax counseling. Elder law practice is necessarily interdisci- plinary and interprofessional in nature, entailing coopera- tion among the attorney, physicians and other health and human services providers, governmental agencies, and nonlegal advocacy and support organizations.45


  • 1.

    United States Department of Health and Human Services, National Center for Health Statistics, Health, United States, 2004, DHHS Pub. No. 2004-1232 (DHHS, Washington, D.C., 2004), p. 21.

  • 2.

    Id. at 305.

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