Elder Law Prof Blog

Good News from CMS-Resumption of Staffing Data

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.

CMA Releases Family Caregiver Brief

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 

1. 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).

FAQ from CMS on SNF Visits

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
end-of-life situations?

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
visitation?

6. Should residents or visitors who have tested positive for COVID-19 participate in
visits?

7. Are nursing homes required to allow visits from the ombudsman when requested by
a resident?

Nursing Homes: Making Room for COVID-19 Residents?

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?

 

Upcoming Webinar: Extreme Home Takeovers - Dealing with "Concerned" Relatives

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?  

This "Should" Be Easy: Support DACA Workers in Health Care and Long-Term Care

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.  

Nursing Homes and the Right to Visitors During a Pandemic

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 .... 

During the pandemic lockdown, states prohibited most visitations, citing the risk of infection from the outside community that could endanger not just the visitor's loved one, but potentially all residents.  States are now beginning to lift or at least ease visitation restrictions, and families are beginning to talk more openly about the impact of the isolation on residents who have not contracted the virus.  

 

This week, NPR has begun airing stories about the challenge of balancing the risks of visitors against the benefits of not just family member visits, but family member involvement in care and socialization for residents.  From one story about Luann Thibodeau and her husband Jeff, who has multiple sclerosis:

 

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."

 

Luann Thibodeau would bring her husband, Jeff, dinner every night, except Tuesdays, when she had Bible study. Since she's been unable to visit, she says that her husband has become increasingly disinterested in food as his multiple sclerosis has worsened.

 

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.  

 

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)

1. The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
2. 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)

1. 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
2. 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)

1. Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
2. 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)

1. Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
2. 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)

1. 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
2. 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.  

Another Roundup of COVID articles

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.

Using Technology to Enhance Family Caregiving (and grieving)

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.  

 

 

 

NYT: "Detecting" the Reasons for a Death in Nursing Home

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."

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.  

Medicare Trustees Report 2020

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."

When Push Comes to Shove: Will Post Covid-19 Mean Better Government Support for In-Home Care?

Pittsburgh-based elder law attorneys Frank Petrich and Julian Gray write regular columns for the Pittsburgh Post-Gazette.  Recently they pulled out their crystal ball to gaze into the future, with the hope that positive change is possible if we pay heed to the lessons we are learning during the response to Covid-19.  In looking at long-term care, they write:

It has been difficult for families, as well as elder law attorneys, over the past few months to connect with clients in long-term care facilities. It’s understandable that restricting access to hospitals, nursing homes and other long-term care facilities saves lives and reduces exposure for all parties.

 

However, given the significant concentration of COVID-19 cases within nursing homes and the inability for families to be with loved ones in person, a radical shift in the delivery of long-term care services is on the horizon.

 

For now, this points toward more people wanting to receive assistance in their homes versus moving into a long-term care facility. Like many states, Pennsylvania has talked about developing programs to keep people in their homes since the Rendell administration.

 

Maybe now that push has come to shove and large stimulus packages are happening weekly, our government can truly live up to its promise of helping people stay in their homes while receiving their long-term care services and support.

 

For more, read Elder Law Guys: Long-term Care after COVID-19, posted May 25, 2020 for the Pittsburgh Post-Gazette.  

 

Pandemic Scams

Not surprising, but come on scammers.  Well anyway, there's a proliferation of scams tied to COVID, not that any of us should find this unexpected.  See, e.g., Corona Virus Scams,  recently published in the ABA Senior Lawyers Division magazine, Voice of Experience.

So it was good news to see The Protecting Seniors from Emergency Scams Act would help prevent scammers from taking advantage of seniors during the coronavirus pandemic and future emergencies introduced in the Senate.  Here's the info about the bill:

The Protecting Seniors from Emergency Scams Act directs the Federal Trade Commission (FTC) to report to Congress on scams targeting seniors during the coronavirus (COVID-19) pandemic and make recommendations on how to prevent future scams during emergencies. The bill also directs the FTC to update its website with information that will help seniors and their caregivers access contacts for law enforcement and adult protective agencies, and directs the FTC to coordinate with the media to distribute this information to ensure seniors and their caregivers are informed. 

Keep an eye on this bill; hopefully it will get some traction!

National Continuing Care Residents Association Joins Other Senior Living Advocates in Opposing COVID-19 Immunity

On June 1, 2020, the National Continuing Care Residents Association (NaCCRA) released its public statement detailing the organization's opposition to COVID-19 immunity or waivers of liability for nursing homes, adding to the growing chorus of opposition. They explain:  

CCRCs mainly provide three levels of care under one roof or on the same campus, normally comprised of independent living, assisted living, and skilled nursing care -- the latter two considered licensed long-term care facilities.  Our members can reside at various times in any of the three levels of care.  Fore example, one spouse can live independently while the other can live in assisted living or skilled nursing.  There are numerous variations of these living arrangements depending on the level of care required.

 

NaCCRA and its members are very sympathetic to the CCRC managers and front-line care/service workers as they labor during the coronavirus pandemic with its many challenges.  However, residents living and dying, many times alone, in nursing homes or assisted living apartments, should not be deprived of their legal rights or protections even in these most extraordinary times.

 

NaCCRA and its member residents living in continuing care settings are alarmed at the push to grant liability immunity to providers and operators of long-term care facilities in the face of the COVID019 epidemic.  Many states have acquiesced to provider association lobbyists at the expense of residents' legal protections.  NaCCRA believes that long term care providers must not be given a pass on negligence in any form simply due to a pandemic, which makes seniors in such congregate settings even more vulnerable.  

 

Therefore, we strongly oppose the liability waivers for COVID-19 legislated by some states.  WE urge that these be repealed and advocate on immediate moratorium on any future waivers for providers/operators of CCRCs and long-term care facilities.  It is our position that existing laws and negligence standards are more than adequate to protect long term care facilities that are sued if they have followed the proper standards of care and protocols.

My thanks to Jim Haynes, the current president of NaCCRA, for keeping us advised on their position.  

Social Security Trustees Report for 2020

With everything else we had going on, this one slipped past me. The SSA Trustees released their annual report in April. Here's the summary from the press release (note-this doesn't include COVID-19 impact analysis)

The Social Security Board of Trustees today released its annual report on the long-term financial status of the Social Security Trust Funds. The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASI and DI) Trust Funds are projected to become depleted in 2035, the same as projected last year, with 79 percent of benefits payable at that time.

The OASI Trust Fund is projected to become depleted in 2034, the same as last year’s estimate, with 76 percent of benefits payable at that time. The DI Trust Fund is estimated to become depleted in 2065, extended 13 years from last year’s estimate of 2052, with 92 percent of benefits still payable.

In the 2020 Annual Report to Congress, the Trustees announced:

• The asset reserves of the combined OASI and DI Trust Funds increased by $2.5 billion in 2019 to a total of $2.897 trillion.
• The total annual cost of the program is projected to exceed total annual income, for the first time since 1982, in 2021 and remain higher throughout the 75-year projection period. As a result, asset reserves are expected to decline during 2021. Social Security’s cost has exceeded its non-interest income since 2010.
• The year when the combined trust fund reserves are projected to become depleted, if Congress does not act before then, is 2035 – the same as last year’s projection. At that time, there would be sufficient income coming in to pay 79 percent of scheduled benefits.

“The projections in this year’s report do not reflect the potential effects of the COVID-19 pandemic on the Social Security program. Given the uncertainty associated with these impacts, the Trustees believe it is not possible to adjust estimates accurately at this time,” said Andrew Saul, Commissioner of Social Security. “The duration and severity of the pandemic will affect the estimates presented in this year’s report and the financial status of the program, particularly in the short term.”

Other highlights of the Trustees Report include:

• Total income, including interest, to the combined OASI and DI Trust Funds amounted to $1.062 trillion in 2019. ($944.5 billion from net payroll tax contributions, $36.5 billion from taxation of benefits, and $81 billion in interest)

• Total expenditures from the combined OASI and DI Trust Funds amounted to $1.059 trillion in 2019.

• Social Security paid benefits of $1.048 trillion in calendar year 2019. There were about 64 million beneficiaries at the end of the calendar year.

• The projected actuarial deficit over the 75-year long-range period is 3.21 percent of taxable payroll – higher than the 2.78 percent projected in last year’s report.

• During 2019, an estimated 178 million people had earnings covered by Social Security and paid payroll taxes.

• The cost of $6.4 billion to administer the Social Security program in 2019 was a very low 0.6 percent of total expenditures.

• The combined Trust Fund asset reserves earned interest at an effective annual rate of 2.8 percent in 2019.

The full trustees' report is available here.

California Appellate Court Rules CCRC Residents Are Protected From Mandatory Arbitration

For more than ten years it is probably fair to say that the most ubiquitous appellate "elder law" cases are those involving attempts by nursing homes to compel arbitration, rather than court-based litigation, usually raised as a defense to personal injury suits brought by residents or family members of residents.  Admission contracts routinely include mandatory arbitration clauses.  Arbitration is often promoted by nursing homes to prospective customers as offering efficient, cost-effective resolution for any disputes; however, seasoned attorneys also know that limiting disputes to arbitration is a means by which care-providers avoid trials by jury, publicly reported trials, and most court-based rules on procedure, rights to discovery and admissibility of evidence.   

This month, a California appellate court (Second District, Division 6) ruled that residents of continuing care communities are protected because of California laws interpreted as prohibiting mandatory arbitration in "rental agreements."  From the June 1, 2020 opinion in Harris v. University Village Thousand Oaks, CCRC, LLC:

Civil Code section 1953, subdivision (a), states, “Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] ... [¶] (4) [Their] procedural rights in litigation in any action involving [their] rights and obligations as a tenant.”

 

... The plain language of Civil Code sections 1940 and 1953 applies to the continuing care contracts here because the fees paid by appellants include payment for the right to live in a residence. Appellants are thus “persons who hire dwelling units.” (Civ. Code, § 1940, subd. (a).) Thus, the protections for “boarders” and “lodgers” (Civ. Code, § 1940, subd. (a)) apply to the “board, or lodging” portions of continuing care contracts (Health & Saf. Code, § 1771, subd. (m)(1)). Because the allegations in the complaint here include claimed violations of “rights and obligations as a tenant” (Civ. Code, § 1953, subd. (a)(4)), the arbitration agreements are void.

The court discussed the reasons legislatures enacted statutory laws to "protect the rights of tenants."  It continued:

Elders entering continuing care contracts are entitled to the same protection as mobile home owners. Both groups face significant economic barriers to relocating. The Legislature recognizes that “elderly residents often ... expend a significant portion of their savings in order to purchase care in a continuing care retirement community,” and that there is a need “to protect the rights of the elderly.” (Health & Saf. Code, §§ 1770, subd. (b), 1776.)

The court acknowledged that CCRC residents also have some express statutory protections under state laws regulating CCRCs, but concluded that the lack of any bar on arbitration in that statutory scheme does not preclude protection for residents under landlord-tenant law.  

Moreover, the continuing care contract statutes “shall be liberally construed for the protection of persons attempting to obtain or receiving continuing care.” (Health & Saf. Code, § 1775, subd. (e). To deny residents of a continuing care retirement community the protection given others who contract for lodging would be inconsistent with this express policy. The legislative purposes of both the landlord-tenant laws and the continuing care contract laws are best served by applying the arbitration prohibition to the housing component of continuing care contracts.

The full opinion is currently available on Westlaw at 2020 WL 2831923.  

In Memory of Kenney Hegland

Professor Hegland died over the weekend.  The following is courtesy of Robert Fleming:

Kenney Hegland, long-time law professor, author, and advocate for various causes, died in Tucson on May 30, 2020. He had been a major force in the lives of many law students and lawyers for a half century.

Prof. Hegland arrived in Tucson (in 1971) as a 30-year-old lawyer with four years of experience, to help run the Neighborhood Law Office. The NLO, a clinical program offered by the University of Arizona College of Law, was the brainchild of Kenney and fellow young lawyer Andy Silverman. The two of them defined law school clinical programs in Arizona for the next couple decades. The idea of standalone clinical programs was brand-new, exciting and not a little bit edgy. It was a perfect fit for his vigorous, eclectic and avant garde style.

The NLO offered a generation of law students an opportunity to better understand the mechanics of client management and the economics of law practice. It was an excellent idea, much beloved by those who went through it. Of course it couldn’t last.

But Prof. Hegland did. He moved into the academic arena with gusto. He wrote extensively – his writing credits include sole or joint authorship of two dozen books and dozens of articles. His interests were wide – from legal clinics, to law-related education for high school students, to mental health issues to aging and the law. In fact, that last interest blossomed into our continuing collaboration, beginning in about 2005.

I had often said that Kenney Hegland was one of the most interesting and inspiring teachers I never took a class from. Working with him for the last fifteen years has deepened that belief. He was driven. He was remarkably funny and literate to an extent that helped me maintain my humility. He was acerbic, and affectionate, and always looking for a new way to help other people. He would have been perfectly okay with getting rich while offering help, but the help was more important than the riches.

Kenney and I wrote three books together (one of them twice). We had vigorous discussions on many issues – from the significance of living wills (he called them “Suggestions, Not Demands” in an article in the Arizona Attorney in 2004) to the utility of YouTube videos (he created one, ironically, on hospice care earlier this year – see www.GoGentle.org).

But here’s the thing I’ll always remember best about Kenney: he didn’t think the study of law should be about reading cases, diagramming holdings and annotating casebooks. Students in his elder law seminar at the UofA were required to visit a senior center, or talk with patients in a local nursing home, or ride along with Meals-on-Wheels providers. They were also given novels to read and discuss, or topical movies to watch. He wanted them to learn about humanity while studying the law.

Kenney’s favorite class, which he taught for many years: Law & Humanities. What an opportunity for him! It helped him focus on a half dozen pieces of literature with a legal tinge – but seldom more than a passing reference to the law. And it gave him another reason to read voraciously and discuss intellectually – with co-presenters, local attorneys he drafted into co-teaching, and students who must not have known what was about to hit them.

Kenney’s wife, retired Judge Barbara Sattler, wrote a few books herself, including two novels focused on legal issues (“Dog Days” in 2013, and “Behind the Robe” in 2019). Not to be outdone, Kenney tried his hand at the genre, as well – his 2014 novel “Law Prof” was about – well, you can guess.

Prof. Hegland leaves behind his wife Barbara and four children. He was immensely proud of all of them, and truly enjoyed a late-life opportunity to practice law in connection with one. He also leaves a legacy of nearly half a century of law students, most of whom are likely to say that he was one of the most energized, inspiring and humane teachers they ever had.

Thank you Professor Hegland. You will be remembered.