Elder Law Prof Blog

Webinar: State Elder Justice Coalitions

Busy tomorrow, June 2, at 2 edt? Take a break and register for this webinar from DOJ's Elder Justice Initiative. State Elder Justice Coalitions: Informing Services and Influencing Public Policy:

Join us for the webinar, State Elder Justice Coalitions: Informing Services and Influencing Public Policy. With increased attention to elder justice, Elder Justice Coalitions are forming throughout the country. While their composition varies, state Elder Justice Coalitions address such issues as public policy, practice, professional training, and public awareness. Members of the National Network of State Elder Justice Coalitions (NNSEJC) Steering Committee will illustrate examples from coalitions across the nation. Topics include development and structure; priorities and notable accomplishments; sustainability; and the roles of the NNSEJC. Time will be allotted to answer attendee questions. 

Please view our recent article, Building a National Elder Justice Movement, State by State
(pp. 111-116), at: https://online.flippingbook.com/view/185807/112/

Click here to register for this webinar.

SNFs and COVID: Going Forward

Looking forward from COVID , here is a story from Wired, Some Nursing Homes Escaped Covid-19—Here's What They Did Right.

The story focuses on steps that can be taken, and the importance of doing so early. But even more so, the story examines the design of nursing homes. Think about it.  As the article points out

Residents, who are older, frail, and often have comorbidities like heart disease or diabetes, are more susceptible to severe Covid-19 infections. Many need help performing basic tasks like eating, dressing, or bathing—care that can’t be delivered through a video appointment, making it more likely they could get an infection from the aides who help them, or pass the virus along to their caretakers. Those aides may work at several different facilities, and unknowingly carry it from one home to another.

The layout of these facilities also furthers contact in various areas. Most residents share bedrooms, bathrooms, activity rooms, and dining rooms—and staffers share a break room. Those group spaces are designed partly to cut costs, and also to encourage socializing. But shared spaces have also helped spread the virus. Senior facilities do have protocols to handle outbreaks like the flu, but the pandemic arrived so quickly and the SARS-CoV-2 virus is so contagious that many facilities were caught unprepared. “There’s an extent to which this virus just had the upper hand,” says Anna Chodos, a geriatrician at the UCSF. Unlike hospitals, most nursing homes aren't ordinarily well stocked with gear like masks and gowns, which aren’t necessary when containing the flu.

The article examines the challenges as restrictions are lifted and the path forward for SNFs in navigating the challenges of the world with COVID-19. We all know this won't be easy.

[P]recautions are only helpful to a point, according to [one expert]. “These outbreaks are continuing and they’re going to continue in nursing homes,” she says. There are still a lot of unanswered questions about how and why the virus has spread so quickly in some homes, but not in others. Based on early data, she says: “It’s about the size of the facility and the amount of spread in your community.”

Nevertheless, [she] warns that while researchers are working furiously to figure out solutions, they still don’t have all the answers: “It's a turbulent time and we're trying to make clinical and operational decisions with incomplete information.”

The article then discusses caring for elders in their homes rather than SNFs and what it would take for that to become a common occurrence.  With potential looming budget cuts from states, the potential for that shift may be a long time coming.

This article does a good job in covering the various issues faced by those who run SNFs as well as those faced by individuals who have family in SNFs.  Read it!

Filial Friday (sort of!)

On occasion, I have created what I call a "Filial Friday" post, where I write about attempts to use "filial support laws" to compel family members, usually adult children, to pay for the costs of nursing home care.  These cases sometimes arise in the U.S., or foreign countries, or in "reverse" circumstances, where the elderly parent is the target of a suit for long-term care of a disabled child.  Pennsylvania has played an important role in this episodic history, in part because of language added to Pennsylvania's colonial era statute that was interpreted by the courts as giving standing to nursing homes to bring direct suits against family members.

But, during the last few weeks of Covid-19-related lockdowns, I've noticed a sharp contrast with the troublesome filial support law cases. I've seen (and happily become part of) what I would call a "neighborhood movement."  For example, one of my neighbors, Marci, who, like many of us, is currently working full time from home, has more or less adopted one of our more elderly neighbors.  The elderly neighbor doesn't have children of her own and she's had some recent health issues.  Marci checks up on her regularly, does grocery shopping for her, prepares and delivers occasional meals, takes the cat to the vet, and more.  No one asked her to do this! 

I've seen other examples, including informal "teams" of neighbors organizing to help older individuals who don't have local family members to provide help. Its great to see -- and I know, I also feel more connected to my own distant family when I can help someone locally.  A "two-fer," as they say.

So, here's wishing you a very Happy Filial Friday -- of a different sort.  

The Most Important Coronavirus Death Statistic?

From Forbes, a deep dive into "The Most Important COVID-19 Statistic: 43% of U.S. Deaths Are From o.6% of the Population."  This will undoubtedly be an ongoing topic for examination for statisticians and analysts.  

Looking at Reasons for Opposition to Federal Immunity for Long-Term Care Facilities Related to Covid-19

A long-time friend and advocate for quality of life as we age contacted me today to discuss what to think about any attempts at federal legislation to immunize long-term care facilities from liability related to Covid-19.  I admitted I hadn't had time to think about this yet!  So, I'm starting my thinking now.   My blogging colleague, Becky Morgan, said earlier this month that even at the state level, immunity is not an "easy" issue.  

Historically, when Congress passed the Nursing Home Reform Act of 1987, it was an important attempt to create minimum national standards for quality of care, in light of a long nightmare of horror stories about inadequate care across the nation.  But, even as it established standards (such as a prohibition on "restraints" without documented medical necessity), it did not establish a "right to sue" by individuals claiming failure to comply with the standards.  That was probably a compromise worked out with the various lobbying groups, but the consequence of that was states were left to decide on their own about whether and to what extent rights exist for a patient to sue for negligent care. So, one could say that it would be "unprecedented" for Congress to actively shield the long-term care industry from quality of care standards, stepping on the toes of the states.   (Plus, at first blush, I don't see how Congress has any authority to craft immunity for facilities that are not subject to Medicare/Medicaid funding and oversight).

On the other hand, depending on how broad or narrow any such legislation was drafted, limited immunity might be appropriate on a narrow ground.  States have been relying on existing federal Medicare/Medicaid law that effectively prevents nursing homes from turning away Covid-19 infected residents as long as they have open beds and the patient qualifies for Medicaid/Medicare.  So those nursing homes have been, in effect, forced to take infected patients, which greatly increases the potential for cross infection, even with "good" infectious disease procedures in place.  But isn't this a "problem" that should be fixed, rather than pasted over?  

Advocacy groups on behalf of older persons, disabled persons, and consumers and workers are making it clear they oppose broad federal immunity.  See the May 11, 2020 letter to Senate Chairman Graham and Ranking Member Feinstein, signed by California Advocates for Nursing Home Reform, The Center for At Risk Elders (CARE), Center for Medicare Advocacy, Community Legal Services in Philadelphia, Justice in Aging, Long-Term Care  Community Coalition, National Association of Local Long Term Care Ombudsmen, National Academy of Elder Law Attorneys, National Association of Social Workers, National Association of State Long Term Care Ombudsman Programs, the National Disability Rights Network, Services Employees International Union, as well as individual law firms.  

See also the letter of May 11, 2020 sent by AARP.

Addendum:  See also  140 Groups Now Oppose Immunity; Nursing Homes Want Immunity and New York Regrets Giving It to Them, posted May 14, 2020 on Public Citizen.

When the Pandemic Comes to a NORC Near You...

In senior living, one of the more interesting phenomena are so-called "naturally occurring retirement communities," or NORCs.  This label, or a related "village" label, is often used to describe residential settings where a large proportion of the population is now over the age of 60, not by design or plan.  The citizenry has continued to live there as they age, and has attracted complementary local service industries, such as wellness programs, home health visitors, day care options, and adapted transportation modes.  Some of the early, well documented and often studied NORCc include Beacon Hill in Boston, and Upper Park Heights in northwestern Baltimore.  Residents in the area often take great pride in the trend, emphasizing it as a positive way to age in place, drawing upon appropriates supports that help to maintain individual dignity.  

But what happens when a new, highly infectious disease also finds its way into a NORC?  As is too often true in law, the answer is probably, "It depends."

One such place is Co-op City in the Bronx.  According to some reports  it is the largest residential development in the U.S., with 43,000 residents in 36 towers and seven townhouse clusters, plus larges grass fields, walking paths, a community garden, nearby schools, shopping, and its own Little League baseball field.  Development of the planned, cooperative housing projects that comprise Co-Op City occurred from approximately 1966 to 1976.  The 2000 census showed that  60.5% of the population of Co-op City was African American, about 27.7% were Hispanic or Latino and about 8.6% were white.  A corporation is in charge of management.  

Co-Op City has also become an unplanned NORC, with one of the largest populations of elderly in the country.   As early as 2007, public sources estimated that over 8,300 of the residents were over the age of 60.  See also 2016 statistics that indicate that 21% of the population in District 10 (where Co-Op City is located) is over age 65, in comparison to New York City's overall age 65+ population of 16%.  Co-Op City is recognized as a NORC-JASA community for age-related programming and services.  

In 2020, the Bronx generally and Co-Op City especially appear to have been hard hit by the corona virus. Public media sources, reporting here and  here, use statistics released by city health officials,  to reveal "that the virus has killed at least 155 people in the zip code" that covers Co-Op City. "That's roughly 1 in every 282 residents."  (Hmm.  I'm not sure about the numerators and denominators used in these articles).  

It may be tempting for some to dismiss negative statistics in any single statistical areas as due to a single factor, such as vulnerability tied to advanced age.  That can be dangerous as discussed in the  article by Barbara Pfeffer Billauer, linked in my May 26 post.  

Instead, take the time to consider other factors that may point to the deep risk of infectious disease in certain congregate settings and that appear to exist in Co-Op City:

• a geographic community with physical constraints that mean residents depend on public transit -- at a higher risk -- for much of their connection to the working world, including non-family caregivers and service providers; 
• confined locations to do necessary shopping for food and pharmacy supplies;
• comparatively tightly packed living or working spaces; 
• and, significantly, common ingress/egress for buildings via limited numbers of hallways and tall towers of elevators for all such comings and goings. 

In this instance, a NORC, usually considered a better space for aging in place, arguably may have become a large-scale version of a nursing home, with abundant opportunities for building-to-building, apartment-to-apartment transmission of infections.  At a minimum, perhaps this is another reason to think more aggressively about public health strategies and health policy priorities in light of the lessons we are learning from the Covid-19 pandemic. 

Special thanks to my Dickinson Law colleague, Professor Sarah Williams, for alerting me to what is happening with coronavirus in Co-Op City.  

 

LTC Facilities: Roundup of Stories

It's hard to keep track of the numerous stories on COVID-19 in LTC facilities, reopening LTC facilities, CMS waivers, CMS guidance, shield laws in various states, and more. Although Professor Pearson and I have been blogging about these issues for a few weeks, I wanted to list a few more stories here (without discussing them) just in case you missed any of them.

• Nursing Homes Seek Immunity Amid COVID-19 Crisis, Alarming Advocates
• Nursing Homes to Get $4.9 Billion From HHS to Combat Virus (1) (may require subscription)
• U.S. nursing homes plagued by infection control issues pre-COVID-19: report
• Trump Administration Issues Guidance to Ensure States Have a Plan in Place to Safely Reopen Nursing Homes
• Trump wants nursing homes to test all staff and residents. That may not be possible.
• Toolkit on State Actions to Mitigate COVID-19 Prevalence in Nursing Homes
• Older does not equal expendable. We need to act in a way that protects our elders from coronavirus
• Halted Nursing Home Inspections Draw Ire of Lawmakers, Attorneys\

I have no doubt there are more...and will continue to be more.... so stay tuned.

Barbara Pfeffer Billauer: An International Perspective on Ageism in the Time of Corona

George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on  "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona."  This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed.  She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years.   Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."

She continues:

It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.

 

At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.” 

Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."

Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.

She questions the statistical basis for some governments' decisions to impose mandatory isolation:

The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.

 

But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?

She is provocative.  She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.

For more, read the full blog post linked above.  For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!

 

Updates on Elder Abuse Statutes from the ABA-COLA

The American Bar Association Commission on Law & Aging (COLA) has released their annual update of elder abuse statutes. The chart runs 61 pages, is organized by state, and can be accessed here.

The chart includes statutes & case law, mandatory reporters, when & how to report as well as other resources.  Bookmark this-it's an important resource!

NYT: A Wife's Worries about the Crisis at Her Husband's Nursing Home

On Memorial Day, we have important opportunities to think.  Today, I've been thinking about those lost in wars and those who survive.  A year ago, I joined a group doing a World War II memorial tour of England and France. I was unprepared for how much walking the beaches at Normandy and the nearby cemeteries would affect me.  Even though my family was not directly impacted by that war, it was a reminder that we are all affected by tragic losses of life.

Today I also just read a very thoughtful piece written by Marcella Goheen for the New York Times.  An image of another war emerges. She explains how her husband at age 65 has been affected by a neurodegenerative disorder that makes it impossible for him to care for himself, and eventually became so severe that it also was impossible for her to care for him at home.  We forget that "nursing homes" are often not just for the very elderly, and can become the short-term or long-term homes of anyone with severe disabilities.  But that doesn't mean that people go there "to die." 

She writes:  

There is life in a nursing home. My husband worked in special education for over 20 years. He understands deeply the value of a life, no matter what form that life takes. He would fight for his fellow residents if he could. I feel betrayed because, while leaders like Gov. Andrew Cuomo and Mayor Bill de Blasio were speaking in their daily news conferences of the “vulnerable population” that needed the most help, not one federal, city or state agency prioritized preventing the loss of life in nursing homes. Instead, officials fought over whose responsibility it was to serve the chronically ill, elderly and disabled people who live in New York State nursing homes. In a mid-April news conference, Governor Cuomo said that “it’s not our job” to provide personal protective equipment to nursing homes in New York City. 

My husband was thrown into a war on the vulnerable without a chance — he cannot care for himself or protect himself from a virus that doesn’t have a vaccine. The fact that he is still alive is a miracle. As of May 10,it was likely that over 5,000 residents in nursing homes statewide had perished. They matter. To be given a chance to live is a human right, and the business of care that impedes this right in any way needs a major reckoning. Not testing health care workers and residents, not addressing staffing shortages, not updating families on loved ones’ conditions and not producing effective plans for managing infections within nursing homes is unacceptable.

There is much more to The Crisis at My Husband's Nursing Home, where she reports that 98 have died with diagnoses of Covid-19. 

Is What CMS Doesn't Say as Important as What CMS Does Say in Recommendations for "Reopening" Nursing Homes?

On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19." 

In some ways, nursing homes may be breathing a sigh of relief as the memo does not use any mandatory language directed at the operators.  In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases.  The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. What does that mean?  You should be able to test everyone before you ease visiting restrictions, but you can choose not to do so?   On page 4, CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan.  The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines, although with no hard numbers for such oversight suggested.

CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases." 

Significantly, there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination.  That seems to me, at least, especially short-sighted.  

Lawyering Challenges in Pandemic Times: How to Tell Clients What They Don't Want to Hear about Waivers of Liability

Recently, I had two overlapping communications.  One was via email, with a lawyer who is advising community groups on whether, how, and when to reopen summer activity programs for children.  The second was by phone, when a gym I belong to called to advise it was reopening in a few days and would honor my prepaid short-term membership, the otherwise expired membership I'd just happened to purchase on February 1.  One condition of returning to the gym would be my signature on a Covid-19 specific release of liability.  These conversations caused me pause, in part because I teach Contracts, a first year course, and we often discuss the viability of "releases of liability."  

In connection with the first conversation, I reread and shared a copy of a Pennsylvania Supreme Court case, Feleccia v. Lackawanna College, 215 A.3d 3 (Pa. 2019). The parties presented two questions to the court:  (1) whether the Pennsylvania college was required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the student-athletes, and (2) whether an exculpatory clause releasing "any and all liability" is enforceable as to negligence in the absence of any specific reference to "negligence." In a detailed analysis, with two justices filing concurring and dissenting opinions, the Court concluded:

For all the foregoing reasons, we hold appellants [the College parties] had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice of March 29, 2010, and there is a genuine issue of material fact regarding whether appellants breached this duty. Moreover, although the Waiver bars recovery for appellees' damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising from gross negligence or recklessness, and there remain factual questions regarding whether appellants' conduct constituted gross negligence or recklessness.

I think it is fair to predict that clients who actually seek a lawyer's advice before reopening operations in the wake of easing Covid-19 restrictions are hoping to hear that "a release" will protect them from liability.  I think I can also predict that lawyers, in any state, will find it challenging to give legal advice in this environment without significant caveats, especially about the use of releases. 

NYT: Homes with Significant Number of Black and Latino Residents Twice as Likely to Be Hit by Coronavirus

The New York Times offers deep analysis of the impact of race on coronavirus infection rates in nursing homes.  A lot to unpack, starting here:

The coronavirus pandemic has devastated the nation's nursing homes, sickening staff members, ravaging residents and contributing to at least 20 percent of the nation's Covid-19 death toll.  The impact has been felt in cities and suburbs, in large facilities and small, in poorly rated homes and in those with stellar marks.

 

But Covid-19 has been particularly virulent toward African-Americans and Latinos:  Nursing homes where those groups make up a significant portion of the residents -- no matter their location, no matter their size, no matter their government rating -- have been twice as likely to get hit by the coronavirus as those where the population is overwhelmingly white.

For more issue spotting, read The Striking Racial Divide in How Covid-19 Has Hit Nursing Homes.

 

 

Pennsylvania Releases Statistics on Covid-19 in Care Facilities

Under pressure from media and advocacy groups, Pennsylvania's Departments of Health and Human Services have recently published statistics about how many residents and employees at a large number of long-term care facilities have been diagnosed with Covid-19 and how many, if any, have died with the diagnosis.  The spreadsheet is interesting, even with redaction of certain information if there is "less than 5" individuals with positive reports, as indicated by an asterisk.  I'm linking here to a Spotlight PA  article (written by Rebecca Moss for an investigative group that draws from the Pittsburgh Post/Gazette, the Philadelphia Inquirer and PennLive/Patriot-News) that provides part of the backstory on the state's decision to provide public information, along with an embedded link to the State's spreadsheet.  

On the one hand, the data is sobering when you see the high numbers of deaths reported at some facilities.  On the other hand, I'm intrigued by the number of facilities, including my own county's public nursing home (one of the few such facilities remaining in Pennsylvania) that report either zero or  less than 5 total cases and no deaths.  

The release of this kind of transparency will be important in the long run -- and help all of us better understand risks of infection in congregate settings, including but not limited to Covid-19.  Additional questions focus focus on Pennsylvania's announced new "strategy" to promote universal testing of "all residents" and "all staff" and also to include "all types" of long-term care, regardless of regulatory designation.  For more on that, see a WITF-Radio Smart Talk interview pointing to "potential holes" in Pennsylvania state reporting on long-term care Covid-19 infections.

It Isn't Just "Nursing Homes"

One way to frustrate anyone operating an assisted living, life plan community, continuing care community or other congregant living situation is to refer to their centers as "nursing homes."  Many people have a fixed, negative mental image of a nursing home.  And when it comes to quality of life indexes, senior living settings that offer options for meal arrangements,  independent living units, daily activities, participation in off-campus events, recreational outlets (such as swimming, gyms, billiards, or golf), assistance with a range of activities of daily living, assistance with memory-based tasks such as medications, etc., typically defy the negative stereotypes. At least they do for those who actually take the time to visit.  

But, sadly, the potential for wide transmission of Covid-19 does not spare the more "active" senior living models. A Philadelphia Inquirer May 18 article reports that Coronavirus Invaded These South Jersey Senior Communities, Despite Managers's Best Efforts.  Some of the locations described in the article I recognize as very high-end, continuing care communities. But money alone isn't insulation.  How money is used can be a factor.  Some especially interesting excerpts from this article:

• A facility’s government quality rating, whether it was a for-profit business, and how much of its budget came from Medicaid, did not predict whether it had cases, said David Grabowski, a health-care policy professor at Harvard University whose study looked at whether nursing homes had any cases, not how many. He said facilities with more staff, PPE and ability to group patients with similar disease status together might have better odds of avoiding major outbreaks.
• Most of [the cases as one continuing care community in New Jersey, known as ] Lions Gate . .  . have been in its nursing home, but there have been 18 in assisted living and one in independent living. Their first case was on March 30, again in a staff member. As the numbers mounted, Lions Gate started testing more widely and found cases among people without symptoms. [CEO Susan Love] does not know how the first employee got it or how it spread. The community tried to confine sick patients to one floor of the nursing home and to assign specific employees to care only for them. Some assisted-living residents were also seen by outside private aides and hospice workers. The average age of the 12 residents who died was 93, Love said. Four were on hospice care. Only five residents who tested positive went to the hospital. Most did not want to go
• [At another New Jersey CCRC],  seven of the 13 residents who died were on hospice. None wanted aggressive medical care, [Executive Director] Clancy said. He takes comfort in knowing that "we abided by the wishes of every single one of them who passed away.”

 

The highlighted sentences in the last two paragraphs raise an important concept I haven't seen discussed often in Covid-19 themed articles.  A friend of mine who is a lawyer who works outside of aging issues asked me recently why I thought the death rate "in" nursing homes or other senior care facilities was "high."  I think one possibility is that such facilities have honest conversations with new residents and their families about "end of life decisions" and it is entirely possible the residents and their family members have given clear, written directions that they do not want to be transferred to hospitals in the event of a life-threatening development.  

 

 

Is This the Time for Renewed Consideration of "Negotiated Risk Agreements" in Care Settings?

In 2011, Joshua R. Wilkins, then a graduating student at Dickinson Law, won one of the top awards for a student writing competition sponsored by the National Academy of Elder Law Attorneys (NAELA).  Joshua wrote about "Consumer Directed Negotiated Risk Agreements."  His introduction began:  

Negotiated risk in the assisted living context is a largely misunderstood concept. Opponents and proponents of the concept often fail to agree on fundamental concepts underlying negotiated risk. Similarly, states have enacted legislation authorizing or prohibiting what is described as negotiated risk – however those states have defined the concept so differently than other states that it is difficult to understand the concept as a cohesive whole. Negotiated risk can be broadly defined as the shifting of responsibility for certain consequences between the resident and the assisted living facility. Further concepts of definition vary greatly between lawyers and industry actors, and will be discussed later.

As a polestar, the general opinions regarding negotiated risk should be summarized. Opponents of the concept believe that negotiated risk is an illegitimate and unenforceable imposition upon the rights of assisted living residents by facilities attempting to contract away liability for resident injuries.  Proponents color negotiated risk as a method for residents to exercise greater control over their living conditions and tailor the services supplied and guidelines imposed by the resident’s facility.

 

This paper proposes an alternative approach to negotiated risk that incorporates concerns of opponents of negotiated risk, and the selling points of proponents. A consumer directed negotiated risk agreement – one prepared by the resident’s independent attorney, would assist the resident in directing their standard of assisted living, while protecting their interests. A document of this type would require new state legislation authorizing the enforceability of risk shifting, and also delineating the boundaries that such an agreement could be used for. Additional benefits to this type of negotiated risk is that concerns over resident safety and welfare during the admissions process could be addressed without completely overhauling the market-based approach that is a hallmark of assisted living. Also, because residents seeking negotiated risk agreements would have to enlist the aid of an independent attorney, they would be more likely to benefit from advice regarding many other aspects of aging that they may not have otherwise obtained – including Medicaid and estate planning, education about possible exploitation, and review of pertinent resident admissions forms and contracts.

In proposing a consumer-driven approach, Joshua recognized critics' past reasons for opposing "negotiated risk" agreements, including the serious concern that facilities could mandate such "agreement" as an automatic wavier of all appropriate standards for care.  That's not true choice.  Attorney Eric Carlson, long-known for his advocacy for seniors, wrote an early article, Protecting Rights or Waiving Them?  Why 'Negotiated Risk' Should be Removed from Assisted Living Law, Journal of Health Care Law & Policy (2007).   

The specific risk that I'm thinking of these days is the risk that attends continued interaction with family members and friends for residents of assisted living or dementia care facilities.  Coronavirus is just one of the risks that comes about through such interaction, and certainly the emerging details of facilities that fail to adopt or enforce sound infection control measures are, at best, disturbing even without this particular disease.  Further, just because one resident is willing to "accept" risk coming from outside interactions, that doesn't mean the entire resident community would feel the same, and yet their own exposure to the risk increases with every fellow resident's outside contact.  And staff members' safety is also impacted by third-party interactions.  

Perhaps negotiation of the risk agreement provisions regarding community/family interactions should be made viable only where stronger safeguards can be developed against "casual" infection sources.  We have standards for "green" architecture.  Are there similar standards for "clean" architecture in senior living settings (and beyond)?  

A Positive Headline about Age for a Troubled Time...

At just about this time last year, I was in Europe and took a walking side trip to the Royal Mews, the stables for Buckingham Palace.  So, I smiled today when I happened to notice this Vanity Fair headline:  "The Queen is Riding Horses Every Day and Ready to Work Harder Than Ever" -- at age 94.  

Dispute over Statistics in Florida regarding Covid-19 Related Deaths

I've written about Pennsylvania's ongoing dispute between its Department of Health and some County Coroners regarding responsibilities for reporting Covid-19 related deaths and how to better assure accuracy of data.   It seems possible to me that part of the controversy in Pennsylvania may reflect the fact that the County Coroners are elected officials, and may not identify with the political views of the Governor.  Some Republicans vs. Democrat.  In contrast, disputes between Florida's 25 medical examiner district offices and the state's Department of Health are emerging news. 

I don't follow politics in Florida closely enough to know whether party-politics are involved, but there does appear to be concern from the regional officials that the State is inclined to discount Covid-19 related deaths in Florida, perhaps in an attempt to protect tourism into the state.  Should a "tourist" that dies in Florida be counted as a death in Florida?  From Florida Today, this opening account of one tourist death:

When a 66-year-old man was found dying on an Amtrak train passing through Okeechobee County on April 5, there was nothing to indicate that he had COVID-19. It was the local medical examiner's office that pieced it together. 

 

The examiner discovered the man had recently arrived with a fever at New Jersey's Newark Liberty International Airport from the United Kingdom. The Centers for Disease Control stopped him from boarding a flight to Florida and sent him to a local hospital for a coronavirus test. Released before the results came back, he got on a southbound train, went into cardiac arrest while traversing the Sunshine State, and was pronounced dead at a Florida hospital.

 

The district medical examiner collected the facts, swabbed the body, confirmed coronavirus and entered the man's death into the Medical Examiners Commission record as a COVID-19 fatality on April 13. . . . 

 

But since at least April 20, the Florida Department of Health has blocked the Medical Examiners Commission from releasing their own detailed spreadsheet of the COVID-19 dead. On Wednesday, the state released the medical examiners' spreadsheet but redacted the narratives and cause of death entries. 

 

For more, read "What's In the Censored Florida Medical Examiners Database of COVID-19 Deaths?" by reporters Alessandro Marazzi Sassoon and Jim Waymer.  

FTC Cautions Nursing Homes or other Medicaid-Supported Programs: Under the CARES Act, Residents' Federal Stimulus Checks Are Not "Available Resources"

The Federal Trade Commission cautions operators of "nursing homes and assisted living residences" they cannot lawfully require residents on Medicaid to "sign over" their pandemic-inspired stimulus checks to pay down their care bills.  Here is why:

According to the CARES Act, those economic impact payments are considered tax credits and tax credits don’t count as “resources” for federal benefits programs like Medicaid. That means that nursing homes and assisted living facilities can’t take that money from residents simply because the resident is on Medicaid. Need some quick cites? Take a look at page 3 of the Congressional Research Services’ COVID-19 and Direct Payments to Individuals: Summary of the 2020 Recovery Rebates/Economic Impact Payments in the CARES Act and 26 U.S.C. § 6409 of the Internal Revenue Code
.

Plus the FTC notes this "isn’t just an arcane hypothetical someone has dreamed up. The Iowa Attorney General’s Office and other State AGs have received boots-on the-ground reports this is happening."

Family members of Medicaid-program LTC clients should also be on the lookout.  FTC advises anyone with concerns about inappropriate actions on stimulous checks to contact their state attorney genera'ls office and report the concern to the FTC.

Thank you to my Dickinson Law colleague, Professor Samantha Prince, for spotting this caution!

Is "What Kinds of Tests?" Just As Important As "Whether to Test" in LTC?

Another interesting conversation with a long-term care administrator this week was about "what kind of tests" are important in the Covid-19 context, especially for older adults in a congregate setting.  A first question is whether every member of the staff and the residents should be tested regardless of the presence or absence of any symptoms.  A Washington Post editorial on May 14, 2020 called for "extreme measures"  Of course, the utility of such threshold testing mandates depends upon the availability of the means to test and how quickly the results of the tests will be processed.  It is unlikely that the nation's  number of residential care facilities will have the White House's "instant" testing equipment, right? 

But when Covid-19 is present in any congregate care setting, the administrator explained a second test may be even more important.   The test is for oxygen levels, taken with a monitoring device, sometimes referred to as an oximeter and often attached to a finger of the person in question. She explained to me that with Covid-19, the impairment of the lungs can occur with dramatic quickness and not necessarily with any complaints from the patient about shortness of breath.  The director explained that donations of oxygen concentrators to her community meant they are able to respond to lowered oxygen levels within seconds -- rather than within life threatening minutes or hours -- to provide enhanced oxygen for the resident.  Further, many at-risk people resident not in nursing homes, but in the many other variations of congregate senior care. 

Have you tried to convince a person with a cognitive impairment or an anxiety disorder to wear a mask or agree to keep that oximeter attached to their hand?  Will "extreme measures" include funding to support needed increases in care-staff ratios?