Protecting Our Vulnerable Elderly: Why Additional Legislation Could Facilitate Informed Decision-Making and Advance Elder Justice for U.S. Senior Citizens

Abstract

According to the 2016 U.S. Census Bureau Report, 46.2 million people were 65 and older in the United States the year 2014.[1]  This population grew from 44.7 million in 2013.[2]  The same report projects that in 2060, 98.2 million U.S. residents will be 65 and older, including 19.7 million over the age of 85.[3]  Historically, this growing population has demanded community and social support programs to help it live the most informed independent life as possible; and it continues to do so.[4]  In 1965 President Lyndon Johnson saw that there was a great need for legislation and advocacy for the elderly community.[5]  The Older Americans Act of 1965 was enacted to assist in the development of social programs and to further improve programs that already existed to advocate for Senior Citizens in the community.[6]  Today the Department of Health and Human Services empowers the Administration on Aging to enforce and fund programs and provisions of the Older Americans Act (OOA).[7]  Its main objective is to ensure equal opportunity for all U.S. Senior Citizens in regards to housing, nursing facilities, employment, legal services, and retirement and healthcare services.[8]  In 2006 and most recently in 2016, the OOA was amended and reauthorized in an effort to be consistent with current regulations and trends in healthcare.[9]

The Federal government recognizes that Senior Citizens are a "special population," one of the most vulnerable populations in our country today.[10]  Due to various circumstances such as poor access to legal services, some senior Citizens are often forced to make uninformed decisions that can have tremendous effects and consequences to their finances and overall health.[11]  While the OOA has served as a vehicle to shape advocacy for Senior Citizens, funding for legal and advocacy services remains stagnant, which often forces Senior Citizens to make decisions on their own without any guidance or the proper information.  Not only is poor access to legal services a barrier that Senior Citizens face when making decisions, this special population traditionally has low health literacy rates.  More often than not, Senior Citizens often become patients in fast-paced healthcare settings and are presented with documents to read and sign about their care that they don't fully comprehend.[12]  This often leads to poor adherence to treatment and delayed diagnosis.  Changes in recent legislation should cause us to explore its impact on Senior Citizen decision-making.  Many Senior Citizens do not know how the Patient Protection and Affordable Care Act (PPACA) influences insurance benefit information.  For instance, healthcare plans made available through the PPACA and Medicare Advantage plans are completely different and each one has different coverage and benefit advantages.  Not knowing the difference can greatly impact healthcare coverage for Senior Citizens.  Many Senior Citizens enroll in these plans without any assistance and wind up paying more out-of-pocket prescription and co-pay expenses than they expected.

This article will examine the need for more legislation to emphasize elder justice and informed consent for Senior Citizens in the United States and how this injustice consequently affects their healthcare and financial decisions.  Sometimes Senior Citizens are forced to make uninformed decisions that have a huge impact on the care that they receive in various healthcare settings, estate planning and overall independence.  Part I of this article will examine root causes as to why seniors are uninformed and the reasons why society has failed to support them.  Social determinants of health such as a low health literacy, failed case management and discharge planning efforts are just a few of the factors that contribute to some seniors making uninformed decisions.  Part II of this article will discuss in detail why seniors are prone to fraud and other vulnerabilities.  Senior Citizens are at an age where financial planning is very pertinent.[13]  It entails everything from choosing the most appropriate health insurance and prescription plans, estate planning, advance directives, and even long term care planning.[14]  Although there are some community and advocacy programs that help educate and assist Senior Citizens with financial planning, more civil penalties and additional legislation should be in place to better safeguard Senior Citizens from the dangers of financial exploitation and healthcare abuse.[15]  Finally, Part III will explore existing legislative efforts and advocacy programs and how they can be more effective in helping seniors make informed decisions in their healthcare and finances.

[1] http://www.census.gov/newsroom/press-releases/2015/cb15-113.html

[2] http://www.census.gov/newsroom/press-releases/2015/cb15-113.html

[3] http://www.census.gov/newsroom/press-releases/2015/cb15-113.html

[4] https://aoa.acl.gov

[5] https://aoa.acl.gov

[6] Older American Act of 1965 89 P.L. 73, 79 Stat. 218

[7] Older American Act of 1965 89 P.L. 73, 79 Stat. 218

[8] Older American Act of 1965 89 P.L. 73, 79 Stat. 218

[9] https://aoa.acl.gov

[10] Article: Special Populations: Mobilization for Change, 25 Touro L. Rev. 467, 474

[11] https://aoa.acl.gov

[12] Article: Special Populations: Mobilization for Change, 25 Touro L. Rev. 467,

[13] Article: Special Populations: Mobilization for Change, 25 Touro L. Rev. 467

[14] Id., 467

[15] Making Elder Financial Exploitation Cases Part of a Sustainable Practice: Tips from the Experiences of the University of Illinois College of Law's Elder Financial Justice Clinic, 23 Elder L.J. 297