Wednesday, November 1, 2017
This week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel." As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.
But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions. I'm sorry I did not have time to stay longer after the program, before heading to the airport. They were very clear and interesting speakers, with healthy senses of humor.
The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.
Whew! Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing? The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.
On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents. The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos. Copyright rules and the growing efforts to ensure payments are the reasons.
The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why. For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.
It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and Health Care Communities" in 2016. Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.
November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
LeadingAge President and CEO Katie Smith Sloan spoke at the Sunday morning (10/29/17) session of NACCRA's meetings in New Orleans. Having taken the reins of LeadingAge after Larry Mannix, it's long time leader who retired in 2015, Katie seems to be settling in well. She identified several themes for LeadinAge's immediate future, including:
- Advocating for an "America Freed From Ageism." Katie observing that this negative bias stands in the way of policy, philanthropy, and hiring in all of the nonprofit senior living and senior service sectors.
- Making LeadingAge "the" trusted voice for aging. She emphasized this goal is all about building relationships and she pointed to several recent high level policy meetings in DC where LeadingAge was invited as a key voice for older adults or the industry.
- Katie also reported that LeadingAge received an outpouring of donations for its disaster relief fund, with over 600 donations. So far the total is more than a half million dollars. She gave examples of how these donations were already helping nonprofit providers affected by the recent hurricanes and fires, including helping staff members who had lost their homes to find housing and helping 3 affordable senior housing communities maximize insurance relief by using donations to pay-down deductibles.
In the Q and A with NaCCRA members, Katie said that LeadingAge and NaCCRA can and should work together to identify common topics for joint efforts, especially on public policy advocacy.
I'm aware that some NaCCRA members are discouraged (or perhaps frustrated is a better word) by a perception that LeadingAge tends to ignore policy points urged by NaCCRA, while still expecting NaCCRA members to support LeadingAge's positions. Time will tell whether NaCCRA was being too tactful in raising this partnership project concern.
Tuesday, October 31, 2017
There is a lot of conversation about aging in place and how to accomplish that goal. Design and modifications may depend on the individual's needs. We think about the concept mainly with elders but what about younger people with special needs who may also desire to stay in one place and grow old there? If you search for resources about aging in place, much of what you find will be specific for elders, but many of the recommendations may be adapted to those who need accommodations to live independently. At Stetson's 19th Annual Special Needs Planning & Special Needs Trusts conference, I visited an exhibitor that provides a great housing option for individuals with special needs that's designed for exactly that. Similar to a CCRC, the concept is a continuum of housing that allows the individual to age in place. Annandale Village, located in Suwanee, GA., provides 4 levels of housing: independent living either on campus or in the community, assisted living and nursing home care for individuals with developmental disabilities or brain injuries. It offers a variety of programs, both for residents and a day program. One cool class teaches folks on managing independent activities of daily living. They also offer respite services. I know they aren't the only organization providing these levels of housing, but I thought it is a really interesting to learn more about the concept., especially supporting the individual's residential needs through his/her life.
Full disclosure-I'm the conference chair for this Stetson conference.
Monday, October 30, 2017
Over the Halloween weekend, I arrived in New Orleans for overlapping annual meetings involving law and aging issues. Whoa! The Big Easy can be a crazy place at this time of the year! Once I recovered from mistaking the annual "Voodoo Festival" at one end of the convention center for the meetings sponsored by LeadingAge and the National Continuing Care Residents Association (NaCCRA) at the other end, I was safely back among friends. (I suspect a better comedienne than I am could come up with a good "undead" joke here!)
Settling down to work, I participated in half-day NaCCRA brainstorming sessions on Saturday and Sunday. Members of the NaCCRA board and other community representatives worked to identify potential barriers to growth of this segment of senior housing. Why is it that there is still so little public understanding of communities that are purpose-designed to meet a wide range of interests, housing and care needs for seniors who are thinking about how best to maximize their lives and their financial investments over the next 10, 15, 20 or more years?
During the Sunday session led by Brad Breeding of MyLifeSite.net, we heard how Brad's experience as a financial planning advisor for his older clients (who were eager for advice on how to evaluate contracts and financial factors when considering communities in North Carolina), led him and a business partner to develop a more nationwide internet platform for comparative information and evaluations.
I first wrote about Brad's concept on this Blog in 2013 when his My LifeSite company was just getting started, and it is exciting to see how far it has come in less than 5 years. They now offer a searchable data base on over 1,000 continuing care and life plan communities. Best of all, they have managed to stay remarkably independent and objective in the information they offer, and have both consumer and providers as customers for their information. They haven't gone down the slippery slope of reselling potential resident information to providers as "leads."
One audience member, a CCRC resident, who is frustrated about a lack of lawyers in her area with knowledge about the laws governing CCRCs, asked "is there a way to get more 'elder law' attorneys to understand regulations and contracts governing this part of the market so as to be informed advisors for prospective residents seeking objective advice?"
I believe the answer is "yes," particularly if current clients in CCRC-dense areas reach out to Elder Law Sections of Bar Associations in their states, suggest hot topics, and offer to work together on Continuing Legal Ed programs to develop that expertise. I know that almost every year at the annual summer 2-day-long Elder Law Institute in Pennsylvania offers breakout sections for lawyers on the latest laws, cases, and regulations affecting individuals in CCRC settings. Indeed, for "future" attorneys I often use CCRC contracts and related issues as teaching tools in my 1L basic Contracts course.
Tuesday, October 24, 2017
One of my colleagues shared with me recently a 30-minute podcast from Radio Diaries, on "The Last Place." The focus is on residents at Presbyterian Homes in Evanston, Illinois, which is sometimes described in the segment as a "nursing home." However, it seems to me to be a continuing care community (CCRC) offering a wide range of residential options, from independent living to skilled care.
The voices on this segment are far more upbeat than the title -- "The Last Place" -- would imply! Good fuel for a family or a classroom discussion. For me, it is a reminder that when someone says "I never want to live in that place," what they usually mean is they never want to be disabled nor in need of care. I think that distinction can be important for families who struggle to live up to a pledge "never" to place their loved ones in care. It's not the place, it's the disability that is the biggest issue. I continue to encounter reminders that the "right" place (for the person's situation, including any disability) is the best place.
Thank you, Mathew Lawrence, for sharing this link!
Wednesday, October 18, 2017
AARP has a new book added to its library on livable communities. Where We Live: Communities for All Ages (2017) by Nancy LeaMond is the second book in their series. This new book is ideas from community leaders, with the earlier book (2016) containing ideas from mayors of cities. Both books are free-bound copies by request from AARP and electronic copies available from many online booksellers or AARP via an email request to WhereWeLive@AARP.org . Topics in the 2017 book include housing; arts, entertainment, fun; community engagement; public spaces (indoors and outdoors); health & wellness; work and volunteering and transportation and infrastructure like roads and sidewalks. To learn more or order your copies, click here.
Monday, October 9, 2017
Steve Moran, who writes for Senior Housing Forum, a website that offers itself as a "place for conversation and collaboration," always seems willing to take on sensitive topics. Recently, in a commentary piece entitled Black Consumers and Senior Living, he nonetheless began:
I am terrified to be writing and publishing this article. It seems that writing anything about race is fraught with all kinds of downsides and very little in the way of upside. Except that we have an ethnic problem in senior living. Today, based on resident populations, only white people (and Asians) seem to like senior living.
He addresses provider attempts to "explain away" the problem and arguments about whether "Blacks and Whites have different world views." Ultimately, recognizing the need for both sensitivity and fearlessness, he concludes, "[I]f senior living is really a great thing, and I believe it is, then we have an obligation" to make it available to everyone.
Certainly there are "marketing" reasons to reach out to a broader circle of perspective clients to offer supportive, attractive community living. But, I think Steve's short post is a good start on other fundamental questions about what consumers want, need, expect, and cherish as they approach some invisible line that makes them eligible for senior living.
Sunday, October 8, 2017
Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary:
Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.
These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.
Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.
Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.
The issue brief offers 7 recommendations including requiring (1) emergency generators, (2) prior coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.
Thursday, October 5, 2017
Former Secretary of Commerce Penny Pritzker: On Her Early Business Career in "Senior Living" & Avoiding Conflicts of Interest
I'm a fan of early morning podcasts of high-profile interviews. For me there is something about listening to them in dim light before my day gets fully started. It allows me to fully "hear" little nuggets of information, ideas about innovations or even law-related gems.
Recently I listened to the August 28, 2017 podcast of David Axelrod's interview of Penny Pritzker, who was Secretary of Commerce during the second term of President Obama. I'd forgotten that Pritzker's early business career included a start-up with "Classic Residence by Hyatt," later rebranded as Vi, a form of high-end senior living communities, operated mostly in the "CCRC" model. Pritzker talks about a family tradition of "graduating from law into business." From the interview transcript, where shes discusses her entry into the family business:
I went to law school [and] I went to business school [at Stanford]. I came back to Chicago and and arrived. And it wasn't obvious what I was going to do but I wanted I had seen my family build businesses and I figured I wanted to do that too. And but it was an environment where there were no women. There were no women, there were no women vice presidents, there were no women in the organization. There was--there were no women parking in the parking garage if you will know women eating in the dining room if you will. And so it required me to I think find what I call the white space. I had to figure out where did I fit. And I felt that the place that I fit best was to really actually create new businesses. And so I became an entrepreneur within two years of arriving back in Chicago. I--there was talk of starting a new business in senior living and I basically said to my uncle I want to do that. And that's how I started my first business which was Classic Residence by Hyatt. And it was you know I was 27 years old. I had a terrific education and I had worked during school as well but there was so much I needed to learn and I had to learn by doing. And I made a ton of mistakes. I didn't know. Some of the people I hired were wrong, some of the decisions I made were wrong.
She speaks candidly about the experience, admitting "we didn't really know what we were doing and we weren't sure exactly what the market [of senior living] wanted or needed." At one point, she realized a $40 billion family investment in her business was at risk, and she talked to the then-patriarch of the Pritzker family, her uncle Jay Pritzker , and said that "if we can't turn this around in six months you should fire me and we should liquidate."
Wednesday, September 27, 2017
The federal Medicare website offers a"Nursing Home Compare" website, which provides useful information on Medicare and Medicaid certified skilled care facilities across the country. The available information includes:
- How nursing homes have performed on health and fire safety inspections
- How the nursing home is staffed with nurses and other healthcare providers
- How well nursing homes care for their residents
But, as we write about so often on this Blog, the majority of senior care occurs outside of nursing homes, with exponential growth in Assisted Living facilities. Thus, it is interesting to hear that a commercial entity has announced it will soon offer access to data on assisted living places. From McKnight's Senior Living News:
“For the first time, the seniors housing industry will have a single source for assisted living asset analysis, reputation evaluation, portfolio monitoring, operator benchmarking, clinical analytics, market analysis and consumer education, with a key benefit being that the burden is not on assisted living providers to submit the data,” Arick Morton, CEO of VisionLTC, said in a statement.
“We've categorized the citations so you can see where areas of concerns are within the different assisted living facilities based on some of the citation standardization work that we've done,” Jessica Curtis, Formation Healthcare Group vice president of clinical systems and analytics, told McKnight's Senior Living.
Unfortunately, in the short run, it appears the database will be marketed exclusively to commercial players, including "operators, real estate investment trusts, lenders, investment groups and clients [of developer Formation Healthcare Group] who have expressed interest." Curtis explained:
“It will be a paid subscription-type service for them,” Curtis said. “As a future development opportunity, we certainly see the need for this type of information to be available for consumers and the general public, and so that may be a consideration for a future version,” she added.
Tuesday, September 26, 2017
Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident. The Long Term Care Community Coalition (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:
The overview explains that
The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.
The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.
The brief can be downloaded as a pdf here.
September 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases | Permalink | Comments (0)
Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment. The landlord was fully aware of the situation. Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time. However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.
What's the problem? When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her. Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.
Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease. In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment. The landlord didn't want a "demanding" resident!
The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.
I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care.
Thursday, September 21, 2017
I like to think of myself as Friday's child, even as I confess I don't quite live up to the standard of being truly giving. For example, I haven't changed jobs or given up my job to be a more direct caregiver for my parents. I'm the child who flies across the country on long-weekends to my parent's home town, and tries to demonstrate my loving and giving nature by fixing all of their problems. I have the "well-meaning Friday child" syndrome. And there are a lot of us out there; I'm often seated next to someone attempting this same care mission on red-eye airplane flights.
Mostly, this pattern tends to drive my folks and my sister, who lives about 30 minutes from my parents' home, a bit crazy. I rationalize my behavior by telling myself, "They asked me to fix XYZ problem!" But doing so on the run is often a less-than-successful strategy. When my father was alive and still at home, he used to respond to my arrival with an immediate question, "when are you leaving?" I used to try to explain away that response by thinking, "he just wants to know so that he can get in an extra ride to the airport, one of his favorite outings." But now my mom is asking me the same question and she doesn't enjoy airport rides.
Over time, one of the things I've learned is that rather than trying to impose solutions, it's better to use these short trips to identify options. For example, as it became clear (at least to me) that my father might not be able to stay at home for the rest of his life, even with round-the-clock assistance, I suggested to my mother that we make a long list of different types of care settings and visit one each time I was home. Sometimes we even saw two spots. Sometimes we made a second visit to a spot we'd looked at earlier. Eventually my mother, worn out and worn down by the care needs of her husband, called me and suggested it "was time" to select a spot, and she already knew which spot was the right one. That process took more than eight months of visits. It meant my sister, my mom and I needed to be on the same team for this big change.
The spot Mom chose -- one of the first on our visit list -- wasn't the fanciest, but it proved to be perfect for Dad. The first few weeks were rough on everyone, but Dad did settle in and sometimes, out of the blue, he would say, "This is a wonderful place, isn't it?" For him it was actually a better place because he had five safe acres of freedom to roam, rather than being trapped in a multi-storied house that made movement much more dangerous and him more anxious. He calmed down, my mom calmed down, my sister got some breathing space, and I relaxed a bit on those still-frequent weekend visits.
Elder Law attorneys know all about the well-meaning child, and they tend to keep the decks clear on Fridays for the meetings with "out-of-town" children, often with one or both parents in tow. The experienced attorney knows how to find the balance between "rush" and "enough time," in order to help families make the best decisions for the future.
Tuesday, September 19, 2017
Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"
We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products. For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.
Recently In Texas, two competitors have been arguing over the definition of assisted living.
In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community. Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.
On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."
Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise. Harbor hired a private investigator to pose as a prospective client for LTIL. The investigator tape-recorded a sales representative for LTIL.
Arguably, it seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.
During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . . Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . . She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.
Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . . Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help.
Monday, September 18, 2017
Consumer Reports published an article that focuses on the terms of an ALF admissions contract. Putting the Assisted Living Facility Contract Under a Microscope starts with recommending that an elder law attorney review the contract before the client signs it. The article lists 4 key areas to examine, including responsible party provisions, costs of care, mandatory arbitration clauses and grounds for discharge. The article offers advice and things to look for within each of these areas. Among others, the article quotes Hy Darling, current president of NAELA and Shirley Whitenack, former NAELA president.
Over the weekend, Florida Governor Rick Scott announced he was "directing" state agencies to "issue emergency rules to keep Floridians safe in health care facilities during emergencies." Arguably, this an example of locking the barn door after the horses have escaped. On the other hand, especially with another hurricane already looming, certainly no political leader wants to be seen as doing nothing.
There are some important questions -- that can perhaps be translated into lessons -- emerging from the most recent tragedy with eight nursing home residents perishing from heat related complications in Broward County Florida after Hurricane Irma.
1. Should States Mandate Specific Equipment? For example, Governor Scott is seeking a rule that mandates "ample resources" including a "generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for a least 96-hours following a power outage." It should be clear, certainly after Katrina (2005), Harvey (2017) and Irma (2017), that some of the biggest dangers of extreme weather events ares not just the wind or rain or fire or other immediate impact, but the consequences of loss of power or other critical resources.
2. Can Inspectors Better Assure Compliance with Safeguards? Governor Scott's demands focus not just on the care facilities' obligations, but on the role of state and local officials to have a system of checks and balances to increase the likelihood the safeguards are actually in place and operable, and not "just" a written plan for the future.
3. What Safeguards Were Effective At Similarly Situated Facilities? News articles report some push back from providers to Scott's measures, who seem to be arguing feasibility and cost. But, certainly there were providers, faced with the same challenges as the Broward County nursing home, who were successful in protecting their residents. Perhaps the more important lesson to learn -- and learn quickly -- is what was affordable and effective?
Also, I think that there are some questions that can be raised about whether and how family members and the larger community might be able to help as part of a plan for disaster preparedness. Certainly not all, and perhaps not even most, families will be able to help in providing post-disaster assistance including temporary shelter. But, I think at a minimum, families would want to know what steps they might take to be part of the safety plan and post-event response.
Thursday, September 14, 2017
As investigations begin into the report of 8 deaths of residents at a single nursing home in Broward County Florida three days after the region was impacted by Hurricane Irma, it occurred to me to look into post-Katrina legal proceedings involving nursing homes.
It turns out that very recently, in June 2017, the Louisiana Court of Appeals (4th Circuit) affirmed an award of $1,000,000 in damages for pain and suffering arising from one elderly woman's death at a nursing home four days after Hurricane Katrina hit New Orleans in August 2005. The nursing home argued comparative fault on the part of the Corp of Engineers for its "negligent design, construction and maintenance of" flood control systems in the region. The Court of Appeals rejected the nursing home's arguments regarding "non-party fault" (emphasis added below):
Following our de novo review of the proffered and record evidence regarding non-party fault, we cannot say that but-for the conduct of the Corps of Engineers, Ms. Robinette would not have died from heat stroke on the second floor of Lafon five days after the City of New Orleans had issued a mandatory evacuation order.
The record shows that flooding at Lafon was not the cause-in-fact of Ms. Robinette's death. Only one foot of water entered the building, and that water receded quickly. Ms. Robinette was not harmed by the flood water. Ms. Robinette's cause of death was heat stroke and dehydration due to her exposure to sweltering heat for four days. And Ms. Robinette's exposure to those extreme heat conditions was caused by Lafon's refusal to follow its own Evacuation Plan, and by the inadequacy of Lafon's backup emergency power generator. But for Lafon's substandard conduct, Ms. Robinette would not have succumbed to heat stroke caused by the lack of electrical power.
Because the Corps of Engineers' conduct was not the cause-in-fact of Ms. Robinette's death, we find no fault by the Corps.
Wednesday, September 13, 2017
A couple of years ago, I was present when my father's dementia care facility -- a licensed assisted living community -- was doing a test of part of their emergency preparedness plan. The staged "emergency" for that particular test was "loss of air-conditioning," which for most of the year in Arizona and other locations in the south and southwest is a serious concern. With climate change, heat and air-conditioning systems are going to be even more critical in the future.
I was impressed that even without back-up generators, the facility had both a short-term and long-range plan. The long-term plan required staged evacuation to other locations. Of course, to be effective, any evacuation would depend on the "other" locations having working power systems, something that can't be certain in a large scale weather or similar emergency.
Sadly, as reported in the New York Times on September 13, following the damage caused by Hurricane Irma, there were several deaths at a long-term care facility near the coast in southeastern Florida. The rapidly developing story suggests that as many as eight deaths were tied to loss of air-conditioning, although not a complete loss of power to the facility. It is too early to know all of the relevant facts. But, what about the law? The NYT article notes that:
Florida requires nursing homes to have procedures to ensure emergency power in a disaster as well as food, water, staffing and 72 hours of supplies. A new federal rule, which comes into effect in November, adds that whatever the alternative source of energy is, it must be capable of maintaining temperatures that protect residents’ health and safety.
Does the federal regulation mandate emergency sources of air-conditioning? Although the highlighted language in the NYT article suggests the new federal rule "comes into effect" in November of this year, my read of the regulation says the effective date was November 15, 2016 -- in other words, last year.
9/14/17 Correction to above paragraph: It was bothering me that I saw more than one news article describing the Emergency Preparedness rule as not taking effect until November of this year. The "effective date" of the Rule is clearly November 15, 2016 -- but, the New York Times is correct -- Long Term Care facilities have "until" November 15, 2017 to "implement" their preparedness plans, including any plan for maintaining safe temperatures. The implementation deadline was in a previous version of the rule, not the version of the rule actually made "effective" on November 15, 2016. Another lesson for me in the need for careful reading of regulations!
Perhaps more importantly, here's the language of the federal regulation, at 42 C.F.R Section 483.73, governing emergency preparedness at LTC facilities:
The LTC facility must develop and implement emergency preparedness policies and procedures, based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, and the communication plan at paragraph (c) of this section. The policies and procedures must be reviewed and updated at least annually. At a minimum, the policies and procedures must address the following:
(1) The provision of subsistence needs for staff and residents, whether they evacuate or shelter in place, include, but are not limited to the following:(i) Food, water, medical, and pharmaceutical supplies.(ii) Alternate sources of energy to maintain—
(A) Temperatures to protect resident health and safety and for the safe and sanitary storage of provisions;(B) Emergency lighting;(C) Fire detection, extinguishing, and alarm systems; and(D) Sewage and waste disposal.
Tuesday, September 12, 2017
With Irma in Florida's rear view mirror (and not a moment too soon), many are focused on what, if anything, should be done differently next time.
For us as attorneys, we should be sure to tell our clients about the importance of having a disaster plan. For clients living elsewhere, whether a long-term care facility or housing specifically for elders, they should be advised to ask a lot of questions. Does the facility have a disaster plan? Get a copy of it. What services does the facility provide to help residents evacuate? In what evacuation zone is the facility located? Does the facility have a back-up generator in the event of a power outage? How does the facility balance having adequate staff on site before, during and after the disaster while simultaneously allowing staff to prepare for the disaster? Does the facility's insurance policy cover property of residents? What services does the facility provide to help residents return after the disaster? What happens if the facility is now uninhabitable? Does the admissions contract provide for any return of the resident's money (this may be more applicable to a CCRC than a SNF or apartment). Will the facility help residents find other suitable housing? What other items would you add to the list?
As part of the news coverage surrounding Irma, the Washington Post ran a story about the risks of evacuating elders. Moving Florida’s many seniors out of Irma’s path has unique risks discusses the research that has been done on the stress of evacuations on elders, noting that some evacuees will die from the stress of evacuation. Whether to go or stay is akin to rolling the dice. On the one hand, those in the path have plenty of advance notice of the approaching storm, but as seen with Irma, the track can (and does) change, so no one knows where it will hit.
If you stay you have risks. If you go, you have risks. As one person quoted in the Washington Post article noted, "[t]his is one of those classic cases of damned if you do, damned if you don’t. It’s a very difficult decision: When you evacuate, there is an inherent body count for frail, older adults...” Because these folks are frail, they need to be evacuated earlier than others might, and based on lessons learned from Andrew and Katrina, there may be more pressure from officials for facilities to evacuate their residents rather than to stay put to weather the storm. Speaking from personal experience, the wait is stressful. It seems to take a long time for the storm to pass over once the go-no go time has passed. Then afterwards, there's the issue of utilities, clean up, services and supplies.
The media aren't the only ones focused on the issues of elders in the path of disasters. The Senate Committee on Aging has scheduled a hearing for September 20, 2017 at 9:00 a.m. on "Disaster Preparedness and Response: The Special Needs of Older Americans"
We often write on this Blog about concerns or even scandals in "nursing home" care for seniors. But, increasingly senior care spans a wide spectrum of formats and identities, and the SNFs of old, both good and bad, are increasingly outnumbered by newer names. "Assisted Living" facilities -- traditionally positioned somewhere between skilled care and independent living -- are now often the target of concerns and lawsuits.
Reading the complaint in the latest suit, a class action filed in federal court in July 2017 in California against Brookdale Senior Living Inc. and Brookdale Senior Living Communities, Inc., I can see a central frustration, regardless of any issue of poor or negligent care. Brookdale is one of the largest, if not the largest providers of assisted living, especially after it acquired another large assisted living operator, Emeritus. The named individual plaintiffs, who describe their extensive impairments, including physical and mental disabilities, also describe their expectations about receiving appropriate care in "assisted living" at an affordable rate. They allege, for example:
Assisted Living facilities are intended to provide a level of care appropriate for those who are unable to live by themselves but who do not have medical conditions requiring more extensive nursing care.
In recent years, [Defendant] has increasingly been accepting and retaining more residents with conditions and care needs that were once handled almost exclusively in skilled nursing facilities. This has allowed [Defendant] to increase not only the potential resident pool but also the amounts of money charged to residents and/or their family members.
The plaintiffs complain that rates charged, alleged to range between "approximately $4,000 to $10,000 per person per month," increased at a rate of 6% to 7% percent per year in each of the last two years, at the same time that staffing levels dropped to a critical, allegedly unsafe level.
At the core of the complaint is the frustration that residents are not being provided the services they need. The legal theories include violation of the Americans with Disabilities Act, state civil rights and consumer protection laws, unfair trade practices laws, and California's Elder Financial Abuse laws, all leading to what I see as a fundamental question:
Can Assisted Living operators be held liable for failure to provide skilled care to residents they allegedly "know" need such care, or is the less-than-skilled label and license to operate a defense against such liability?
The Brookdale defendants deny the allegations of fault. For more, see Largest Assisted Living Chain in U.S. Sued for Poor Care of Elderly from California Healthline.