Tuesday, July 7, 2020
Upcoming in July: AALS/CLEA Virtual Clinical Conference to include Pandemic-Impact Speakers on Clinics that Serve Older Adults
AALS's Clinical Section and CLEA are hosting a free Virtual Clinical Conference that begins Tuesday, July 21, running through Thursday, July 23. The conference offers two plenary sessions, a webinar, asynchronous videos, large group discussions, small group discussions focued on specific topics or within affinity groups, very timely programs sponsored by Clinicians of Color, and a final community building session.
Jam-packed! -- but also easy to navigate through the virtual platform. Here's the link to the full schedule. The sessions will begin each day at noon, Eastern Daylight Savings Time. Register for the Conference here.
And did I mention it is FREE?!
Elder Law/Disability Law Clinical gurus Martha Mannix (University of Pittsburgh) and Mary Helen McNeal (Syracuse) will be facilitators for three afternoon sessions on "Student Representation of Elderly and Special Needs Clients in Virtual and COVID World" and the brainstorming topics include:
1. Discussion on how we might reimagine our encounters with our elderly clientss or clients with disabilities through communications technology or creative reconfiguring of in-person client meetings.
2. Discussion on the role of students. Does the COVID-19 emergency require us to restructure or reimagine the role of the clinic student and our supervision of them in light of the challenges presented by remote learning and representation and institutional desires to shield student from risk?
3. Discussion on whether we might consider altering the nature of our legal work in clinical settings: Is this the moment best met by continuing individual representation or should we turn our ckubucak efforts to addressing systemic issues or engagement in policy advocacy?
And to add to the intrigue -- the final session of the three-day program includes a Dance Party! Let your inner "Hairspray" shine!
Monday, July 6, 2020
Last month I made my first roundtrip, domestic airline flight following 90+ days of lockdown and gradual easing of travel restrictions. I scheduled this quick trip cautiously, for family-related reasons, and with a goal of returning to my Pennsylvania home well in advance of any return to work with students in my law school. I'm not a timid flyer, but I did my best to try to minimize risk factors, including selection of an airline that advertised "vacant" middle seats, masking requirements, and updated standards for cleaning the airplane and social distancing. I am writing here because an individual on the return leg of my flight in my same row (but across the aisle) became seriously ill during the flight. This post is about my growing concern about what it means to respond to the potential for a communicable illness while traveling, especially but not exclusively in the time of COVID-19.
When the individual became ill (seeming to lose consciousness and vomiting-- more ill than what I associate with "mere" air sickness), the flight attendants responded to his needs with plastic bags and napkins. On the positive side, they kept everything low key and talked to the individual softly. I think it was another, closer passenger who summoned them and everyone tried to respect the privacy of the individual. Eventually, the ill passenger was moved to the rear of the plane. Shortly after that, all passengers were informed the seatbelt signs had been activated and everyone should stay in their seats for the remainder of the flight. There were no further announcements and nothing said about the ill passenger specifically. When the flight arrived at its regular destination, I did not see the individual leave the plane.
What does it mean for any state health department or CDC program official to say they will follow a plan for contact tracing? Each step of the process needs clarity, including that first step of identifying the ill traveler and other potentially affected travelers, right?
I received a traditional customer satisfaction "survey" form from the airline the morning of my return via email, asking me to describe the flight. This made me realize that I should be talking directly to the airline about this specific incident. Was the individual in question experiencing a communicable illness, especially COVID-19? I made a short, emailed report to the airline less than 12 hours after the end of the flight, and made a follow up inquiry and a second report by telephone and email. The most I have learned is that the airline is "researching" whether there is any record of the incident or illness on board that flight. Taking a week (or more?) to determine whether the crew made a report is not reassuring. At a minimum, shouldn't there be a record of that plane being taken out of service for some period of time for cleaning?
The Pennsylvania governor, for reasons unrelated to my account above, has recently asked all residents returning from the departure state in question (and certain other states experiencing surges in COVID-19) to self-quarantine for 14 days. That makes sense. Even though I had been exceptionally careful during my time out-of-state, the airline incident was a stark reminder that travel, even with the lessons learned during the last several months, involves factors that are completly outside the control of any of the passengers. "Being careful" on an individual basis may not be enough and when something happens that involves risk to others, we need clear lines for any investigation and communication.
Everyday we are learning new things about how to deal with communicable illnesses, including ones that may be life-threatening. I think what I'm realizing is that as individuals and consumers, we cannot be passive about these steps.
I contacted the CDC and was told there is a process for "contact investigations" by the CDC, but that triggering such an investigation cannot be done easily, at least not if you are a mere passenger. They recommended I contact the health department in the state where my plane landed. Here is what CDC sent me by email: https://www.cdc.gov/quarantine/contact-investigation.html
Weaknesses clearly exist in the protocols. The airline and CDC have been quick to warn me that they cannot give any information about the "patient." I'm not asking to know the patient's identity in any way. But shouldn't any potentially affected traveler be entitled to know:
a. Whether there was a report of the illness made by the crew to the airline and/or other authorities.
b. The result of any investigation, especially in terms of public health implications.
c. Whether a specific, communicable illness or disease was identified.
d. Whether there are specific steps that should be taken by passengers in light of the history.
Shouldn't the CDC want to know whether others on that plane have experienced similar symptoms? (Thankfully, I have not, but although I was in the line of sight of his seat, there were others between us, and in front and behind him, who were much closer.) I have realized that short of contacting every passenger on the plane, it might be difficult for some airlines to help with "contact" tracing. They may be relying on a manifest rather than a chart for assigned seats. Certainly, no one asked me or other, closer passengers on the flight for contact information. I hope the ill individual has recovered fully and quickly, and that for his sake this was a temporary illness. I'm being calm, even as I'm frustrated. I'm frustrated not just for myself, but for the larger public. The passengers on this plane included all ages, including older individuals. Earlier during my trip, I overheard one older traveler say to another, "I just want to live long enough to see my grandchildren again."
Thursday, July 2, 2020
More good news from CMS-the members of the Independent Coronavirus Commission on Safety and Quality in Nursing Homes have been announced. The 25 experts
The commission members are:
Roya Agahi, RN, MS HCM, WCC; Chief Nursing Officer, formerly of NYC Health + Hospitals, soon to be of CareRite, New York
Lisa M. Brown, PhD, ABPP; Professor of Psychology, Palo Alto University, California
Mark Burket, CEO, Platte Health Center Avera, South Dakota
Eric M. Carlson, JD; Directing Attorney, Justice in Aging, California
Michelle Dionne-Vahalik, DNP, RN; Associate Commissioner, State Health and Human Services Commission, Texas
Debra Fournier, MSB, BSN, ANCC RN-BC, LNHA, CHD, CPHQ; COO, Veterans’ Homes, Maine
Terry T. Fulmer, PhD, RN, FAAN; President, The John A. Hartford Foundation, New York
Candace S. Goehring, MN, RN; Director, State Department of Social and Health Services, Aging and Long-Term Support Administration, Washington
David C. Grabowski, PhD; Professor of Healthcare Policy, Harvard University, Massachusetts
Camille Rochelle Jordan, RN, BSN, MSN, APRN, FNP-C, CDP; Senior Vice President of Clinical Operations & Innovations, Signature Healthcare, Kentucky
Jessica Kalender-Rich, MD, CMD, AGSF, FAAHPM, FACP; Medical Director, Post-Acute Care, University of Kansas Health System, Kansas
Marshall Barry Kapp, JD, MPH; Professor Emeritus of Law, Florida State University, Florida
Morgan Jane Katz, MD, MHS; Assistant Professor of Medicine, Johns Hopkins University, Maryland
Beverley L. Laubert, MA; State Long-Term Care Ombudsman, State Department of Aging, Ohio
Rosie D. Lyles, MD, MHA, MSc, FACA; Director of Clinical Affairs, Medline Industries, Illinois
Jeannee Parker Martin, MPH, BSN; President and CEO, LeadingAge California
G. Adam Mayle, CHFM, CHC, CHE; Administrative Director of Facilities, Memorial Healthcare System, Florida
David A. Nace, MD, MPH, CMD; President, AMDA – The Society for Post-Acute and Long-Term Care Medicine, Pennsylvania
Lori Porter, LNHA, CNA; CEO, National Association of Health Care Assistants, Missouri
Neil Pruitt, Jr., MBA, MHA, LNHA; Chairman and CEO, PruittHealth, Inc., Georgia
Penelope Ann Shaw, PhD; Nursing Home Resident and Advocate, Braintree Manor Healthcare, Massachusetts
Lori O. Smetanka, JD; Executive Director, National Consumer Voice for Quality Long-Term Care, Maryland
Janet Snipes, LNHA; Executive Director, Holly Heights Nursing Home, Colorado
Patricia W. Stone, PhD, MPH, FAAN, RN, CIC; Professor of Health Policy in Nursing, Columbia University, New York
Dallas Taylor, BSN, RN; Director of Nursing, Eliza Bryant Village, Ohio
The Commission will conduct a comprehensive assessment of the overall response to the COVID-19 pandemic in nursing homes. Based on its assessment, the Commission will make recommendations on actions and best practices for immediate and future actions. Three key areas of focus for the Commission include:
Ensuring nursing home residents are protected from COVID-19 and improving the responsiveness of care delivery to maximize the quality of life for residents;
Strengthening efforts to enable rapid and effective identification and mitigation of COVID-19 transmission (and other infectious disease) in nursing homes; and
Enhancing strategies to improve compliance with infection control policies in response to COVID-19.
Crossing my fingers....
Hard to believe we are scheduling for January 2021, isn't it! Here's the scheduled speakers and topics for the co-hosted program during the AALS Annual Meeting in San Francisco on "Intersectionality, Aging and the Law:"
Alex Boni-Saenz (Chicago-Kent), Age Diversity
Naomi Cahn (GW) & Nina Kohn (Syracuse), How Law and Sex Shape What It Means to Be Old
Veronica C. Gonzales-Zamora (UNM), The Triple Threat: Millenium Women of Color
Jessica Mantel (Houston), Allocating Scarce Medical Resources During a Pandemic: Rationing Based on Age is not the Same as Rationing Based on Disability
Katherine Pearson (PSU-Dickinson), Pandemic Protections: Where is the Line in Patient Autonomy?
Tara Sklar (U Arizona), Frailty, Vulnerability, and Big Data
Ruqaiijah Yearby (SLU), The Dark (Trinity): How Structural Discrimination, Wealth Inequalities, and Lack of Access to Health Care Cause Health Disparities for Elderly Women of Color
July 2, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International, Programs/CLEs, Statistics | Permalink | Comments (0)
Wednesday, July 1, 2020
Although not specifically elder law, still an important update for us. According to a recent article in the ABA Journal, Washington Supreme Court sunsets limited license program for nonlawyers. As originally planned, the program would focus on family law and then expand into elder law. "The court’s 7-2 vote last Thursday to prohibit anyone not already in the LLLT pipeline to pursue the license comes just eight years after the court approved the creation of the first such legal license for nonlawyers in the country. Several other states have since approved—or have considered approving—similar programs." The article notes that costs of the program and the lack of interest in the program as the reasons for the Court's decision. Those licensed will be able to continue as an LLLT but no new individuals will be licensed after July 31, 2021.
I've recently returned from a week in Arizona with family. I managed to arrive in Phoenix just in time for a surge in COVID-19 cases, traffic headaches connected to President Trump's campaign visits, a couple of new wildfires, and a few more degrees up the summer temperature gauge. Probably the most newsworthy part of the trip was the announcement by Arizona authorities that the state was activating a COVID-19 crisis plan that involves triage -- or "rationing" as some people interpreting the plan are calling it. One component of the Arizona plan involves "protocols for scarce resource allocation." An Arizona public statement describing the protocols attempts to reassure the public (emphasis provided with blue color):
If resources are sufficient, all patients who can potentially benefit from therapies will be offered therapies. If resources are insufficient, all patients will be individually assessed. No one will be categorically denied care based on stereotypes, assumptions about any person’s quality of life, or judgement about a person’s “worth” based on the presence or absence of disabilities.
All patients, regardless of resource availability, will be treated with respect, care, and compassion. Triage decisions will be made without regard to basis of race, ethnicity, color, national origin, religion, sex, disability, veteran status, age, genetic information, sexual orientation, gender identity, quality of life, or any other ethically irrelevant criteria.
When resources become inadequate -- implicit in the Governor's recent news conferences -- triage involves a color-coded system of triage "priority scores." According to the statement, "All patients will be eligible to receive critical care beds and services regardless of their triage score, but available critical care resources will be allocated according to priority score, such that the availability of these services will determine how many patients will receive critical care."
The guidelines indicate health care providers must make an active assessment of the "patient's goals of care and treatment preferences. It is imperative to know whether aggressive interventions such as hospitalization, ICU admission or mechnical ventilation are consistent with a patient's preferences.... All hospitalized patients should be asked about advance care planning documents, goals of care, and are strongly encouraged to appoint a proxy decision-maker (e.g., medical durable power of attorney... or health care agent) if not previously in place. Patients in nursing homes, skilled nursing facilities, other long-term care settings, and outpatient care settings should also be asked about their goals of care and advanced care planning documents.... If advance clare planning documents are in place and available the healthcare provider should verify the patient's goals of care and treatment preferences remain the same....."
Will the patient's age, especially an advanced age, be relevant to a Arizona's Covid-19 crisis plan? On the one hand, the guidelines indicate "age" is expressly "removed ... as a specific factor for Triage Priority scores or Triage Color Groups." On the other hand, when determining the Triage Priority Score, points assessed must reflect an evaluation of whether the patient is "expected to live more than 5 years if patient survives the acute illness [zero points added]" or whether death is "expected wtihin 5 years despite successful treatment of acute illness [2 points added]." If "death [is] expected within 1 year regardless of successful treatment of the acute illness," 4 points are added. The patient's prioritization for critical care resources is best with a low score (1 to 3 total points), while priority is reduced to "intermediate" (4 to 5 points) or "lowest," if they are assessed with more than 6 total points. Further, "age" is implicitly involved as the prioritization process somehow examines the specific patient's "opportunty to experience life stages (childhood, young adulthood, middle years, and older years)."
These are obviously tough calls in any health care assessment contect, but especially so in the middle of a pandemic. Public health professionals have experience with these kinds of assessements. I suspect that many families also have engaged in a type of informal assessment when serving as a loved one's health care spokesperson or agent.
My sister and I were thinking about last summer as I visited this summer. Last summer, the two of us talked about similar factors when making the call on whether our mother would have hip-surgery at age 93 following a fall-related fracture. The doctor said that without the surgery our mother was unlikely to walk again because of pain; with the surgery there was a significant chance she would be able to walk without pain. She ended up sailing through the surgery -- and began taking steps again the same day. Ironically, probably because of her increasing dementia, she had no fear of falling nor any memory of the surgey and thus was soon fully ambulatory (although she did sometimes substitute a walker for her occasional cane) and remained so for all but the last few days if the next six months of life. That took her into the summer of 2019 in Arizona.
If the cornonavirus pandemic had occurred in the summer of 2019, and if safe access to hospitals and surgery were the issues, my best guess is Mom would probably have had a "high" score on any health care triage assessment -- in other words, not good news. We are glad we never confronted decisions about respirators or ventilators. We do know that our very elderly mother had a much better quality of life with major surgery than she would have had without it. Just one case, of course. Again, tough calls (and yes, expensive calls for Medicare) with or without a pandemic to complicate the decision process.
Tuesday, June 30, 2020
A recent press release from CMS notes that CMS ... Plans to End the Blanket Waiver Requiring Nursing Homes to Submit Staffing Data
[T]he Centers for Medicare & Medicaid Services (CMS) announced plans to end the emergency blanket waiver requiring all nursing homes to resume submitting staffing data through the Payroll-Based Journal (PBJ) system by August 14, 2020. The PBJ system allows CMS to collect nursing home staffing information which impacts the quality of care residents receive. The blanket waiver was intended to temporarily allow the agency to concentrate efforts on combating COVID-19 and reduce administrative burden on nursing homes so they could focus on patient health and safety during this public health emergency.
The memorandum released today also provides updates related to staffing and quality measures used on the Nursing Home Compare website and the Five Star Rating System.
The memorandum is available here.
Monday, June 29, 2020
The Center for Medicare Advocacy (CMA) has released an issue brief on Medicare and Family Caregivers. "This Issue Brief examines the role Medicare currently plays, and could play, in assisting
beneficiaries and their family caregivers." The issue brief covers Medicare law, the need for coverage, issues with receiving Medicare home health care services, problems with access to coverage, the limited number of aides, and more. The Brief also discusses Medicare Advantage and in-home services.
CMA makes theses recommendations
- Ensure the scope of current allowable home health benefits, generally, and home health aides, specifically, are actually provided. Simply put, ensure that current law is followed;
2. Create a new stand-alone home health aide benefit that would provide coverage without the current skilled care or homebound requirements, using Medicare’s existing infrastructure as the vehicle for the new coverage; and
3. Identify other opportunities for further exploration within and without the Medicare program, including additional Medicare revisions, demonstrations, and initiatives overseen by the Center for Medicare and Medicaid Innovation (CMMI).
After providing some actual examples, the Brief provides insights into other additions to Medicare that would provide more services to beneficiaries. The conclusion provides that "Medicare home health coverage is not being implemented to the full extent of the law. If it were,
countless beneficiaries and families would be better off. Nonetheless, at best, the current Medicare benefit leaves far too many patients and caregivers behind. In order to provide quality home-based
care for individuals, and support for their caregivers, significant changes are needed to the
Medicare program and the broader health insurance system." (citations omitted).
Sunday, June 28, 2020
A few days ago CMS released a four page FAQ re: visiting residents in SNFs. Frequently Asked Questions (FAQs) on Nursing Home Visitation.
The FAQs include
1.What steps should nursing homes take before reopening to visitors?
2. The reopening recommendations maintain that visitation should only be allowed for
“compassionate care situations.” Do compassionate care situations only refer to
3. Can facilities use creative means, such as outside visits, to begin to allow for
visitation within the CMS and CDC guidelines; even before reaching phase three?
4.Can nursing home residents participate in communal activities before reaching
phase 3 of the nursing home reopening plan?
5.What factors should nursing homes consider when making decisions about
6. Should residents or visitors who have tested positive for COVID-19 participate in
7. Are nursing homes required to allow visits from the ombudsman when requested by
Friday, June 26, 2020
Each day I get a email from Kaiser Health News (KHN) that contains articles collected from the prior day on various health topics. Since COVID-19 arrived, the number of articles concerning nursing homes has greatly increased. I've refrained from writing about those-mainly because there are so many of them. But here's a recent article that I felt was too important to pass by.
The New York Times,ran an article with this eye-popping headline: ‘They Just Dumped Him Like Trash’: Nursing Homes Evict Vulnerable Residents. "Nursing homes across the country are kicking out old and disabled residents and sending them to homeless shelters and rundown motels." The article makes the point that caring for COVID-19 patients is more lucrative than long-term care residents.
"Many nursing homes are struggling in part because one of their most profitable businesses — post-surgery rehab — has withered as states restricted hospitals from performing nonessential services. ... Treating Covid-19 patients quickly became a popular way to fill that financial void... Last fall, the Centers for Medicare and Medicaid changed the formula for reimbursing nursing homes, making it more profitable to take in sicker patients for a short period of time. COVID-19 patients can bring in at least $600 more a day in Medicare dollars than people with relatively mild health issues, according to nursing home executives and state officials." Don't forget, however, that profit isn't the motive in every instance-remember back when the hospitals were jammed with COVID-19 patients and asked nursing homes to take some?
With SNFs shut down to outside visitors, Ombudsman visits may also be curtailed. And although the law requires that SNFs "find a safe alternative location for the resident to go, whether that is an assisted living facility, an apartment or, in rare circumstances, a homeless shelter... some homes have figured out a workaround: They pressure residents to leave. Many residents assume they have no choice, and the nursing homes often do not report them to ombudsmen." Only a handful of facilities have a moratorium on resident evictions during the pandemic.
Hello CMS-are you watching this?
Thursday, June 18, 2020
On Monday, June 22, 2020, I'm joining the 3rd Annual Memorial Elder Abuse Sympsium hosted by Legal Aid Services of Oklahoma and being delivered as a webinar over the course of several sessions. On Monday, the first set of speakers includes deeply experienced professionals in banking and securities, both potential avenues for elder fraud, as well as Judge Scott Roland of the Oklahoma Court of Criminal Appeals. I follow them with the topic "Extreme Home Takeovers - Dealing with Concerned Relatives" -- the clever title supplied by our hosts!
I'll be offering comparative statutory and common law approaches for recovering a house. including my own experiences while supervising Dickinson Law's Elder Protection Clinic. The need is usually triggered by a transaction often tied to the worries of the older person, hoping or believeing that a family member, friend or new "befriender" would be more likely to save them from the dreaded nursing home if they give the hoped-for-caregiver "the house." I'll be using cases from Ireland, Pennsylvania, Oklahoma (of course) and beyond for strategies, and discussing everything from filial support laws, to improvident tranaction laws, to the common law concept of failure of consideration in "support deeds."
More Reasons for a Serious Bi-Partisan Commitment to Citizenship for DACA Health & Long-Term Care Workers
Shared by my colleague, Professor Medha Makhlouf, who heads Dickinson Law's Medical-Legal Partnership Clinic, this thoughtful article explaining the importance of DACA-recipient health care workers in the United States, especially now:
The Covid-19 pandemic is stretching our public health system to its limits and challenging our ability to meet the urgent and critical medical needs of the country as never before. As executives responsible for the legal affairs of major hospitals and lawyers working in Covid-19 hot spots, we know how crucial it is to have every available front-line medical worker fighting this pandemic. . . .
New data from the Center for American Progress reveals that the DACA-recipient health care work force includes more than 6,000 diagnosing and treating practitioners, including respiratory therapists, physicians assistants and nurses; some 8,000 health aides, including nursing assistants and orderlies; more than 7,000 other health care support workers; and some 5,500 health technologists and technicians.
The Association of American Medical Colleges told the Supreme Court that nearly 200 physicians, medical students and residents depend on DACA for their ability to practice medicine and serve their communities. Those 200 trainees and physicians alone would care for hundreds of thousands of patients per year in normal times — the association estimates as many as 4,600 patients per year, per person. Under the demands of the Covid-19 pandemic, those numbers will be much higher.
The Center for Migration Studies found that 43,500 DACA recipients work in the health care and social-assistance industries, including more than 10,000 in hospitals....
The decision on the DACA case is expected this week. "If the Supreme Court upholds the decision to terminate DACA, nearly 700,000 people — including those health care workers — will lose their ability to work and live in the United States." For more, ready the full NYT article, There's Only One Thing Stopping Trump From Deporting Health Care Workers.
For once, the members of Congress from both sides of the aisle should be ready with emergency legislation for citizenship (or at a minimum, permanent residency status) for these essential workers. It is the least we can do for people who are doing the most. And it is vital for the best interests of public health across the nation. A win-win, if we can just focus on what's important.
WOW! Moments after I posted the above, I see the news flash that Supreme Court Rules Against Trump Administration Attempt to End DACA, A Win for Undocumented Immigrants Brought to U.S. As Children.
After reading the opinion(s), it is clear that while DACA recipients have a temporary reprieve, the real need is serious consideration of true relief from fear of deportation. Must they really wait until after the election?
June 18, 2020 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, International | Permalink | Comments (0)
Wednesday, June 17, 2020
The Supreme Court 's ruling on the fate of DACA-residents and workers in the U.S. could be issued this week. Regardless of the outcome on the case itself, everyone who cares about quality of health care, including long-term care, should also care about the United States' need to be honest about how much health care depends on the hard work and commitment to care provided by temporary-status and undocumented-status workers in health and personal care jobs. I've seen DACA workers in action in elder care, and I've seen their families ripped apart by harsh immigration rulings.
NPR's Morning Edition had a short and yet deeply important segment today on Health Care Workers Who Are Awaiting Supreme Court DACA Decision. Do listen to the podcast replay -- it is just 4 minutes -- and think about whether this is a key opportunity for a true, bipartisan solution for DACA-children (families) who so often are working in some of the most challenging (and dangerous) U.S. jobs during the COVID-19 pandemic. Let's do the right thing.
June 17, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, International, Medicaid, Medicare | Permalink | Comments (0)
Thursday, June 11, 2020
The seminal 1987 Nursing Home Reform Act requires all nursing facilities to care for their residents in a manner that that "will promote ,maintenance or enhancement of the quality of life of each resident." 12 USCA Section 1396r(b)(1)(A). The same law, at Section 1396r(e)(3), addresses "access and visitation rights:"
A nursing facility must - ...(B) permit immediate access to a resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;(C) permit immediate access to a resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident;
(D) permit reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time ....
It wasn't candlelight and soft music that made the 40th anniversary of Luann and Jeff Thibodeau so memorable. It was gazing at each other through the window of Jeff's nursing home in Texas and eating carryout from the Olive Garden. Just the two of them. And a nursing assistant.
"She fed him, and I ate mine, and that was it," Luann Thibodeau says. "So that was our 40th wedding anniversary."
The Thibodeaus have not been in the same room since mid-March. That's when visitors were banned from nursing homes to slow the spread of the coronavirus. But family members say that talking via FaceTime and holding up signs at windows are no substitute for the hands-on care and emotional support their visits provide.
Family members often are an integral part of the care residents in nursing homes receive. They make sure meals are being eaten, clothes are being changed. They also offer invaluable emotional support. . . .
Luann Thibodeau has seen that decline in her husband. She used to bring dinner for him every night except Tuesdays when she goes to Bible Study. She says that as his multiple sclerosis has worsened, he's become increasingly disinterested in food. [She explains]. "I bully him into finishing a meal. And I'll say to him, 'Jeff, you know, this is what an adult man eats. So you need to eat this.' "
A staff member can't do what she does. Nursing home residents have rights. So if Jeff Thibodeau tells a nursing assistant that he's done eating after three bites, she has to abide by his wishes.
Without his wife's push, the results of her absence is striking.
For more, listen to the NPR podcast or read the parallel written narrative in "Banned From Nursing Homes, Families See Shocking Decline In Their Loved Ones."
The federal Nursing Home Reform Act's Bill of Rights has never been an easily enforceable mandate, and particularly in a global crisis the needs of the many can override the rights of individuals. But there does need to be a long-range plan on how better to facilitate visitation, recognizing it as an important part of any person's quality of life.
June 11, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (2)
Monday, June 8, 2020
Oklahoma Legal Aid Services Update: 3rd Annual Memorial Elder Abuse Symposium Goes Virtual, Starting June 15
This year, the Sonya L. Patterson Elder Abuse Symposium hosted annually by Legal Aid Services of Oklahoma, will take place over the course of several weeks, in bite-size programming, rather than in a single, all-day conference format. In light of the online setting, the organizers are also able to open up registration and attendance to interested people outside of Oklahoma; however, there are limits on the number who can attend each session, so I recommend registering early. In past years, the symposium has drawn an audience of attorneys, law enforcement and social workers, with CLE credits available.
I'm very pleased for the opportunity to be a speaker this year. In addition to attorneys and judges, the speakers include health care professionals and bankers. The program honors the life and advocacy of a young Oklahoma public interest attorney, Sonya L. Patterson, who passed away far too soon in 2015, as the result of an accident at the age of just 30.
Here's the line up for the midday Symposium Webinar Series , with all sessions taking place on Central Daylight Savings Time:
Session 1: Monday, June 15th (11:00 am to 1:45 pm)
- The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
- Attorney Responsibility to Client’s Ward or Principal- Rick Goralewicz, Staff Attorney, Legal Aid Services of Oklahoma
Session 2: Monday, June 22nd (11:00 am to 1:15 pm)
- Financial Exploitation of the Elderly- Justice Scott Roland, Oklahoma Court of Criminal Appeals with Elaine Dodd, Executive Vice President/ Fraud Division at Oklahoma Banker's Association and Jennifer Shaw, Oklahoma Securities Commission
- Extreme Home Takeover: Dealing with the “Concerned Relative”- Katherine C. Pearson, Professor of Law at Dickinson Law, Pennsylvania State University, Carlisle Pennsylvania
Session 3: Wednesday, June 24th (11:00 am to 1:15 pm)
- Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
- Experts: Identifying and Utilizing in Elder Abuse Litigation- Kara Vincent, Attorney, Barber and Bartz
Session 4: Monday, June 29th (11:00 am to 1:15 pm)
- Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
- Abuse in Institutional Settings- William Whited, State Long Term Care Ombudsman and Nicole Snapp-Holloway, Attorney at Maples, Nix and Diesselhorst
Session 5: Wednesday, July 1st (11:00 am to 1:15 pm)
- Incompetency, Incapacity and Vulnerability- Mark Holmes, Attorney at Holmes, Holmes and Niesent, PLLC, Travis Smith, Attorney at Holmes, Holmes and Niesent, PLLC and Cathy Wood, Adult Protective Services
- Isolation and Loneliness- Laurel Dinkel, LCSW, Norman, Oklahoma
Click HERE for access to registration information for individual sessions or the entire series. My thanks to Oklahoma Legal Aid Staff Attorney Rick Goralewicz for the invitation.
June 8, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, State Cases, State Statutes/Regulations, Statistics, Webinars | Permalink | Comments (0)
I wanted to make you aware of a few more articles. Here are the links:
Covid-19 Pandemic Hits Nursing-Home Finances (Wall Street Journal-subscription required)
For Seniors, COVID-19 Sets Off A Pandemic Of Despair (Kaiser Health News) (this article talks about isolation, but note this quote from the article: "Making it worse, some seniors fear that their lives may be seen as expendable in the rush to reopen the country.... “[Older adults] are wondering if their lives are going to end shortly for reasons out of their control,” said Dr. Linda Fried, dean of the Mailman School of Public Health at Columbia University, in a university publication. 'They’re wondering if they’ll be able to get the care they need. And most profoundly, they’re wondering if they are going to be cast out of society. If their lives have value.'"
From the UK, The scandal of Covid-19 in care homes (thanks to Professor Nagle for sending this to me).
Finally, this article from Rolling Stone, Why Older People Might Suffer Most, Post-Pandemic If you work in the field of aging, that article is a must-read.
Sunday, June 7, 2020
The increasing use and sophistication of various new technical products and remote platforms for monitoring patients and family members is profiled in this article from the New York Times. I can remember when my very rudimentary way of checking daily on my Mom was watching her yahoo email account to see whether there was a green oval to indicate she was typing! Somewhere along the way, the ethical implications of monitoring other's online activity eliminated that option, and that makes sense.
And speaking of technology, tomorrow is my first participation in an online memorial. A Zoom send-off. A another step in the brave new world of finding new ways to be together alone.
Saturday, June 6, 2020
From a sad, powerful story about one of many deaths at Isabella Geriatric Center, carried in the New York Times:
A little after 1 in the afternoon, Aida Pabey got the call from the nursing home: Her mother was not going to make it. It was April 6, nearly four weeks after the state had barred all visitors to nursing homes, and Aida and her sister, Haydee, had been struggling to get even the most basic information about their mother. Was she eating? Had the coronavirus reached her part of the home?
Now this dire call. Just the day before, the sisters had been assured by an aide that their mother was “fine.”
They were both detectives in the New York Police Department, 20-year veterans. They were used to getting information, even from people determined to withhold it. But the nursing home had been a black box.
They raced to the home. Haydee got there first and managed to get upstairs. Aida, arriving second, identified herself as a crime scene investigator and brought safety gear. “I had my face shield, my bootees, my mask, my gloves,” she said. The security guard refused to let her in. “No. It was, ‘No way.’”
For more read, When Their Mother Died at a Nursing Home, 2 Detectives Wanted Answer. As one of our Blog's readers has commented recently, "we need to go a step deeper to the ROOT cause of these serious breaches of safe practices in care facilities."
June 6, 2020 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, June 5, 2020
Must Any Public "Right to Know" the Covid-19 Infection Status of LTC Facilities Depend on Legislation?
Under the best of circumstances, it is difficult to make a decision about whether to place a fragile loved one in a care community. With COVID-19, such a decision can be even more difficult, as some states states (and some facilities) have resisted making public the names of long-term care facilities where residents or staff have been diagnosed with COVID-19.
In Arizona, a "right to inspect public records" suit was filed on May 5, 2020 by news organizations, seeking to review "public records" that show the number of COVID-19 positive residents at nursing care institutions, as well as the number of transfers made between such facilities and Arizona hospitals. They were not requesting the identity of the residents; however, disclosing records containing the numbers would disclose the names of the facilities. That state's Governor has reportedly taken the position that not disclosing the COVID-19 infection history of facilities by name is "in the best interest of public health."
On May 29, Maricopa County Superior Court Judge Christopher Coury ruled against the news organizations. In the 23-page opinion in CV 2020-005385, Judge Coury concluded with these interesting paragraphs:
72. Both Plaintiffs and Defendants have asserted legitimate positions in this action, particularly given that the underlying issues are important and weighty in the lives of Arizonans. It is beyond dispute that Arizonans who have parents, aunts, uncles, friends, neighbors, and loved ones living, or who may in the future be placed, in a Facility to care for them want, and justifiably deserve, to know how that Facility and its residents have fared during the Covid-19 public health emergency. As a son, nephew, friend, and neighbor, this judicial officer understands, respects, and empathizes with the need for Arizonans to have access to the information contained in the Records. Fortunately, this need of family and caregivers has been mitigated, if not eliminated, by EXECUTIVE ORDER 2020-35, which requires Facilities to provide Covid-19 information to residents, transferees, and applicants – and their guardians and next of kin – on a prompt basis.
73. It is not the position of the Judicial Branch to enact legislation or to create policy – that responsibility rests squarely with the other branches of government. The Legislature could consider the policy implications on all sides of this issue, and if desired, enact clarifying legislation and expressly protect records, or direct that records be released. If any frustration exists, it is that this has not happened. The Act – the legislation authorizing the actions at issue – lacks clarity. Rather than using model legislation with clearly defined terms, and rather than actually defining the terms used, the Legislature in 2002 created Arizona-specific legislation, apparently from whole cloth. Even though the subject matter of the Act relates to emergencies – instances when clear statutes are needed to permit critical, decisive and time-sensitive actions – the Act left critical terms undefined. Eighteen regular legislative sessions have passed, and the Act has not been amended or clarified. Perhaps this is the fortuitous result of not having to deal with a widespread health emergency during the intervening years. Nonetheless, if this decision illustrates nothing else, it highlights the need for the Legislature to revisit the Act and make it more workable for all concerned. In its present form, the ambiguous Act does a disservice to the media, to government leaders, to the courts, and to all Arizonans.
74. Arizona has been profoundly impacted by Covid-19. Lives have been lost. Women and men, old and young, have been sickened. The economy has been set back. Livelihoods of people have been compromised. Weddings and religious ceremonies have been delayed. Births and funerals have been isolated. Students have missed classes and graduations. Temptation exists to simply adopt jurisprudence that because Covid-19 has created such harm in our state and because Arizonans need information to battle Covid-19, sufficient justification exists to “look the other way” and require release of the Records. This judicial officer, however, will not and cannot do this. Indeed, were this judicial officer to ignore the law, Arizona’s Constitution – and its provisions of limited government and separation of powers – would be added to the list of Covid-19’s victims. The Court will neither countenance nor assist in this. Although difficult in the face of this devilish virus, fidelity to the Constitution and laws of the State of Arizona must prevail.
Therefore, Judge Coury entered judgment against the News Organizations as plaintiffs with respect to their request to produce records containing numerical information on COVID-19 infections at specific facilities, ruling that this was medical information that was "confidential and protected as a matter of law."
The court found that a triable issue exists relating to other issues in the case, "specifically, Defendant's failure to produce documents relating to information regarding the availability of PPE."
Note: I have not yet found a public website containing Judge Coury's decision, although it appears the order is not a restricted document. If any of our readers come across such a site, feel free to let me know and I can amend this post to link to the full opinion.
My thanks to Jon Dessaules, a former Dickinson Law student, now a long-established Phoenix attorney, for assistance in tracking down information on this case.
And you know when the SSA Trustees Report is out, the Medicare Trustees Report is soon to follow. The Medicare Trustees report is available here. There's no quick summary available, but the introduction and the overview provides some helpful info.
First, and importantly, this report doesn't take COVID-19 into account: "The projections and analysis in this report do not reflect the potential effects of the COVID-19 pandemic on the Medicare program. Given the uncertainty associated with these impacts, the Trustees believe that it is not possible to adjust the estimates accurately at this time."
Second, "Projections of Medicare costs are highly uncertain, especially when looking out more than several decades. One reason for uncertainty is that scientific advances will make possible new interventions, procedures, and therapies. Some conditions that are untreatable today may be handled routinely in the future. Spurred by economic incentives, the institutions through which care is delivered will evolve, possibly becoming more efficient. While most health care technological advances to date have tended to increase expenditures, the health care landscape is shifting. No one knows whether future developments will,on balance, increase or decrease costs."
Third, "Notwithstanding recent favorable developments, current-law projections indicate that Medicare still faces a substantial financial shortfall that will need to be addressed with further legislation. Such legislation should be enacted sooner rather than later to minimize the impact on beneficiaries, providers, and taxpayers."
Fourth, "The estimated depletion date for the HI trust fund is 2026, the same as in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years. HI income is projected to be lower than last year’s estimates due to lower payroll taxes. HI expenditures are projected to be lower than last year’s estimates because of lower-than-projected 2019 spending, lower projected provider payment updates, and incorporation of time-to death into the demographic factors used in the projection model. Partially offsetting this decrease in expenditures is higher projected spending growth for Medicare Advantage beneficiaries." (citations omitted)
Fifth, for Part B, "The SMI trust fund is expected to be adequately financed over the next 10 years and beyond because income from premiums and general revenue for Parts B and D are reset each year to cover expected costs and ensure a reserve for Part B contingencies."
Finally, note this: "The Trustees are issuing a determination of projected excess general revenue Medicare funding in this report because the difference between Medicare’s total outlays and its dedicated financing sources is projected to exceed 45 percent of outlays within 7 years. Since this
determination was made last year as well, this year’s determination triggers a Medicare funding warning, which (i) requires the President to submit to Congress proposed legislation to respond to the warning within 15 days after the submission of the Fiscal Year 2022 Budget and (ii) requires Congress to consider the legislation on an expedited basis. This is the fourth consecutive year that a determination of excess general revenue Medicare funding has been issued, and the third
consecutive year that a Medicare funding warning has been issued."