Elder Law Prof Blog

COVID and Elders: Some Recent Articles to Close Out 2020

It's the end of 2020---finally---so here are a few recent items about Elders and COVID  to close out 2020.

Bankruptcies, Closures Loom for Nursing Homes Beset by Pandemic.

Nursing Home Patients Are Dying of Loneliness

State COVID-19 Data and Policy Actions

Some states buck federal vaccine recommendations and prioritize the elderly over essential workers.

There is a lot to unpack in these articles. COVID has had a significant impact on elders, and it will be some time before we learn the full impact on elders, their families and the professionals who serve them.  I expect several of my students in my spring seminar will write papers on these various issues.

Sorry to not end 2020 on a happy note. Here's to 2021 and rapid availability of the vaccine to all. Stay smart, stay masked and stay home. Thanks to our health care providers, first responders and those who keep us going.

 

Everyday Ageism

Before the holidays, The Washington Post ran an article that really resonated. At my age, it’s time to fight everyday ageism — especially when I’m guilty of it starts with a mention of birthday cards that make old age jokes, compliments (you don't look your age), and even lying about one's age. The author explains that this type of action is indicative of everyday ageism, that is "reinforcing the stereotype that old is bad (and young is good). I’d absorbed the negative messages about being older."  Please don't think this is something that happens occasionally. (Just think about greeting cards and party decorations).  The article notes that "the University of Michigan in conjunction with AARP reported the findings of its National Poll on Healthy Aging, which described how those .... 50 to 80  ...  are bombarded with negative and hostile stereotypes."

Here are some telling results from that poll:

The poll examined older adults’ experiences with nine different forms of ageism, which fall into three buckets: exposure to ageist messages (like advertising), ageism in interpersonal relationships (what friends or family say) and internalized ageism (negative beliefs we absorb).

According to the poll, “more than 80 percent of those polled say they commonly experience at least one form of ageism in their day-to-day lives.” And 40 percent said they routinely experience three or more forms of this everyday ageism...."

The article notes the physical and psychological impact on those subjected to everyday ageism. And it's just not in person interactions. [T]he more time we spend watching television, browsing the Internet or reading magazines, the more likely we are to experience everyday ageism, meaning negative — and incorrect — images of older people such as those depicting us as frail or dependent, or unable to use new tech devices or social media platforms." The article offers some steps we can take to push back against this everyday ageism.

I plan to use this article in my class. My hope is it will make my students think...and change their behaviors.

Thanks to Professor Naomi Cahn for sending me the link to the article.

Florida COVID SNF Deaths Rise

The Tampa Bay Times reported recently on an uptick in the numbers of COVID deaths in Florida . Why are coronavirus deaths doubling in Florida’s nursing homes? references a recent report from AARP  "that the COVID-19 death rate among Florida nursing home residents doubled in the three weeks around the Thanksgiving holiday, and infections continue to climb among the state’s most vulnerable residents. The death toll spike was so alarming that AARP decided to report on the data rather than wait for its scheduled monthly release on Jan. 10." One expert quoted for the article pointed to the state's failure to "to provide accurate, rapid-result testing of everyone entering elder-care facilities — staff, visitors, family caregivers and vendors."  The AARP report with the Florida data is available here. 

Santa's Grandkids Reach Out to SNF Residents

We all need good news these days.  So here's one story for the holidays that should make you smile. Santa’s ‘Grandchildren’ Spread Joy In Italian Nursing Homes explains the Santa's grandkids project:

Despite a grim year marked by death and loneliness, the holiday spirit is descending on the Zanchi nursing home, one of the first in Italy to shut its doors to visitors after a COVID-19 case was confirmed in the nearby hospital on Feb. 23.

The bearers of glad tidings were the so-called “grandchildren of Santa Claus,” people who answered a charity’s call to spread cheer to elderly nursing home residents, many of whom live far from their families or don’t have any family members left.

The program, in its third year, continues to grow in popularity, with  almost 6000 gits distributed to 228 SNFs.  The featured nursing home had 43 residents participating which included virtual visits with Santa's grandkids, during which the SNF residents opened presents.  It is worth noting that the volunteer grandkids also benefited from participating in the project.

Well done everyone!

 

 

Hugs in Time for Christmas

A couple of days ago, the Washington Post ran an uplifting article about a hug room in a SNF.  After months of isolation, a ‘hug room’ lets Italian nursing home residents touch family for the first time tells us about "a 7-foot-tall piece of plexiglass, molded into a three-sided booth. It had four cutout holes, where protective sleeves would be added for arms. It was known, in the strange language of the pandemic, as a “hug room,” but it was less a room than a barrier: residents on one side, relatives on the other."  Although not as ideal as living in a COVID free world (or at least a vaccinated one), this "plexiglass represented the sort of modest step some nursing homes are now taking in a year when they have faced excruciating decisions about how protective to be and how best to reduce their risks."  The article references similar efforts taken by other SNFs.

A  little bit of good news, then, for Christmas.

PS: Florida announced that the second round of vaccines will go to those 70 and older, and Texas, to those 65+ and older.

PPS-remember to thank first responders, health care professionals and all who keep us safe and going through this trying time. Stay safe and stay healthy.

 

Tis the Season... for the Scammers

Although in truth, there is no "season" for scammers. They operate year round. The only thing that changes is the scam. The Washington Post a few weeks ago highlighted this with the following story, A professor thought he was sending money to help federal officials catch human traffickers. It was a scam.

The story seemed hard to believe, but whatever doubts the professor said he harbored melted away as the purported agent unspooled detail after detail of the man’s life. He knew his Social Security number. He listed properties the man had purchased 20 years ago and knew the banks he used.

 ** *

Government impersonation scams are an exploding category of crime with losses increasing tenfold from $12.5 million in 2017 to $124 million in 2019, according to the FBI’s Internet Crime Complaint Center. The FBI, U.S. Marshals, IRS and police departments nationwide have reported issues in recent years, but the Social Security Administration (SSA) has been one of the hardest hit.

This story has something of a happy ending-the authorities were notified and quickly acted, recovering the victim's money but the investigation continues without any arrests at this time.

 

Be smart and be safe.

Social Security Proposal to Restrict SSDI Benefits?

The Hill ran an item a couple of weeks ago, Social Security Administration is preparing to bar 500,000 Americans from getting benefits.

SSA’s proposal, as described in press reports, would make it harder for older workers to receive Social Security Disability Insurance (SSDI) benefits. By law (not regulation), SSA is required to consider age, education and work experience when determining whether a person meets the statutory definition of disability.

The implications are far reaching-if this proposal is passed.

In short, SSA’s proposal to tighten SSDI benefits fails to even advance past a very basic question about the suggested policy: What is the point? Looking at recent or modern data, the current system routinely denies benefits to older individuals with serious health problems and diminished prospects in the modern economy. Amplifying these outcomes by trying to get even more denials is not a rational policy approach.

The proposal would also exacerbate inequality in the United States along the lines of race and income. More than 25 percent of denied Social Security disability applicants are Black, a percentage that far exceeds the percentage of African Americans in the overall working age population. Additionally, nearly 40 percent of denied applicants live in poverty. SSA’s proposal to get more denials seems out of touch with regard to many of the serious problems facing the country.

It remains to be seen whether the administration will continue to push this through before President-elect Biden takes office.  Although the change could be undone, wouldn't it be nice if it just didn't happen?

Thanks to my colleague, Professor Mark Bauer, for sending me the article.

More on SNFs and COVID

It's going to be some time before we see good news stories about residents of SNFs---although the vaccination of SNF residents is good news.  So here are several recent articles regarding SNFS and COVID-but be forewarned, these first two are not easy to read.

51 lost lives: A portrait of the pandemic’s tragic toll in America’s nursing homes

South Dakota’s COVID-19 Surge Is Turning Nursing Homes Into A ‘Battle Zone’

There are just no words....

Then: 

An investment firm snapped up nursing homes during the pandemic. Employees say care suffered.

(Thanks to Morris Klein and Professor Bauer for sending me the link to this article).

and finally

With Vaccine Delivery Imminent, Nursing Homes Must Make a Strong Pitch to Residents.

This last article brings up some interesting issues for class discussion-such as consent, refusal of consent, and inability to consent.

Please everyone-stay safe and remember to thank our first responders, health care professionals and essential workers. And let us never forget those we have lost to this pandemic.

Hands on Learning From Caring For Elder Parents

JAMA network published this article, What Caring for My Aging Parents Taught Me That Medical Education Did Not is a first person account by the author of what he went through with his parents, and what he learned from the experience.

Slowly, however, things started to change. My parents seemed to have increasing difficulty staying organized. Instead of me calling them, they began calling me—at first weekly, then daily, and then multiple times per day. My father’s blood pressure was out of control, and he could not tell me what medications he was taking. My mother’s scoliosis, a problem since adolescence, now caused her to have significant difficulty walking. She looked thinner each time I saw her. Their physicians seemed not to be communicating well with each other. Finding their cell phones became a daily project.

Then came the identity theft: strange addresses on their credit card statements, charges to their accounts from Florida businesses when they were not living there, and even their telephone being answered by the identity thief himself. Managing these problems became my part-time job. Since credit card fraud departments are typically open only during business hours, I would sometimes spend afternoon hours on hold from my hospital office, waiting for someone to pick up, rather than charting, talking to a consultant, or doing research.

The move from their home of 30 years was the next step. They simply could not manage the house. Once spotlessly clean, it was now increasingly cluttered with tchotchkes from circa 1993. The garden was overgrown, the dishes dirty. After work, I typically spent an hour every day helping organize, donate, and throw away their belongings, so that we could put the house up for sale. Thankfully, the renovations went smoothly and the house sold quickly. Although not without drama, my parents moved to a retirement facility nearby.

The  author created a list of what he wished he had known as he cared for his parents:

1. If you have the feeling that something may be an issue for your aging parents, it is almost definitely an issue.

2. Make sure you know about all your parents’ financial accounts. 
3. You (and they) may need emotional support from people you would not expect. 
4. Advocate for your parents in the best way you can, but do not expect everything to be cut and dried.
5. Use technology to help you (and them).
6. Do not expect too much from the medical system. 
7. You must have the difficult conversations if the physicians will not.
8. You may need to get them daily help.
9. Do not forget to keep some perspective and occasionally laugh.

Great article! Thanks to Amos Goodall, Esq. for sending me the link.

Podcast on End of Life Decisionmaking in Guardianship Cases

GeriPal, a geriatrics and palliative care blog, has released a podcast, Guardianship and End-of-Life Decision Making: A Podcast with Andy Cohen and Liz Dzeng, discussing  a recent study led by Dr. Cohen.

The big surprise finding of this study was veterans who were nursing home residents aged 65 and older with moderate to severe dementia and who had a professional guardian were no more likely to receive high‐intensity treatments than the same population who died with decision makers who were not professional guardians.   We talk to Andy about his study, potential reasons behind the study, and what, if anything, we should do differently knowing these results. We also talk to Liz about whether substituted judgement is really all that it’s cracked up to be.

The article, Guardianship and End‐of‐Life Care for Veterans with Dementia in Nursing Homes  and editorial, We Need a Paradigm Shift Around End‐of‐Life Decision Making,  are available here and here.

Spain's Parliament Votes to Legalize Euthanasia

According to a story yesterday in the AP news, Spain’s parliament vote[d] to legalize euthanasia. The bill provides for medical aid-in-dying or euthanasia "for long-suffering patients of incurable diseases or unbearable permanent conditions." The bill next goes to their Senate. The article notes that                       "[e]uthanasia — when a doctor directly administers fatal drugs to a patient — is legal in Belgium, Canada, Colombia, Luxembourg, the Netherlands and Switzerland. In some U.S. states, medically-assisted suicide — where patients administer the lethal drug themselves, under medical supervision — is permitted." The bill requires multiple requests by the patient, the first 2 of which must be written and made with two weeks between the requests.  Medical professionals must be involved and requests are reviewed and granted by a regional oversight board. Only adult Spanish residents or citizens who can make rational decisions would be able to make such requests.

 

 

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COVID and FInancial Harm

There's absolutely nothing good at all about COVID. I could list a number of ways it has harmed us, beyond health implications, but I just want to share one article with you from the New York Times, Female Workers Could Take Another Pandemic Hit: To Their Retirements.

Now, the pandemic recession is disproportionately damaging the careers of women — so much so that some experts call it a “shecession.”

In November, the national unemployment rate dipped to 6.7 percent from 6.9 percent, the Labor Department reported last week. But the pace of job growth has stalled, and millions have dropped out of the labor market altogether, especially women. One recent study found a disproportionate decline in employment for women of prime working age, 25 to 55, compared with men — and especially so for mothers.

The losses sustained are not just right now-but must be factored over time, including "missed wage growth, retirement savings and Social Security benefits."  Here is a great visual for this: a calculator developed by the center for American Progress.

The article discusses the importance of Social Security and includes info about President-elect Biden's plans for Social Security, which would

award work credit to people who cared for children or other relatives. It would also expand benefits for widows in certain circumstances, and bump up benefits for seniors who had collected payments for 20 years. Finally, it would adopt a new yardstick to determine Social Security’s annual cost-of-living adjustment — the CPI-E, an experimental Labor Department inflation measure designed to more accurately reflect the inflation experienced by seniors, especially health care expenses.

This is a good article-I plan to assign it to my students in the spring.

BTW, a shout out to the health care workers, first responders, essential personnel, everyone, who is keeping us going through this pandemic.  And to the scientists who created the vaccine, THANK YOU!!!!

Register Now for This Webinar

On Thursday, December 17, 2020, for a webinar through the National Center for State Courts Elders and Courts. The webinar covers "a new web-based interactive tool: the Judicial Response Protocol for Guardianship and Conservatorship abuses (http://www.eldersandcourts.org/guardianship_conservatorship/guardianship-conservatorship-resources-for-courts/responses-to-allegations-of-wrongdoing). This webinar will be helpful for judges and for court staff. This project was developed with the support of the State Justice Institute..'

To register, click here: https://zoom.us/webinar/register/WN_EuKscJoASJaNSY4hJs2jlg

Is It Bad Money Management or is it Dementia?

JAMA Internal Medicine published the results of a recent study, Financial Presentation of Alzheimer Disease and Related Dementias.

Here are the key points from the study: 

Question  Are Alzheimer disease and related dementias (ADRD) associated with adverse financial outcomes in the years before and after diagnosis?

Findings  In this cohort study of 81 364 Medicare beneficiaries living in single-person households, those with ADRD were more likely to miss bill payments up to 6 years prior to diagnosis and started to develop subprime credit scores 2.5 years prior to diagnosis compared with those never diagnosed. These negative financial outcomes persisted after ADRD diagnosis, accounted for 10% to 15% of missed payments in our sample, and were more prevalent in census tracts with less college education.

Meaning  Alzheimer disease and related dementias were associated with adverse financial events starting years prior to clinical diagnosis.

The full article is  available here.

The COVID Crisis in One Florida LTC Facility

The Tampa Bay Times ran a profile of  a local long term care facility that experienced a significant COVID outbreak last spring.  Death at Freedom Square  is an in-depth story about the people who live and work at Freedom Square and the spread of COVID within that facility. The article provides detailed reporting (In fact the TBT refers to this story as a "project").  The article is written in a way that tells the story of the people impacted, which makes it a compelling--- and sad---- read.    

Nine months into the pandemic, the virus has killed more than 19,000 Floridians. About 40 percent of the deaths have been among senior care residents. In Pinellas County alone, more than 2 out of 3 coronavirus deaths are connected to nursing homes and assisted living centers.

Freedom Square, a 15-acre retirement complex built around a town square and a gazebo, was the early epicenter in Tampa Bay.

Of course, we all know that this is not the only facility that experienced a COVID outbreak, whether inside Florida or in other states. The human interest angle makes this a compelling read, but it also includes important information about the Florida responses and about the corporate structure for this facility.

The article is as gripping as it is saddening; the reporters use of the human interest angle helps remind us that we aren't talking about numbers---we are talking about people.

Read it!

The Business Side of SNFs

Maryland elder law attorney Morris Klein sent me a link to an article recently published in the Washington Post.  How government incentives shaped the nursing home business — and left it vulnerable to a pandemic explains

Federal money, through the Medicare and Medicaid systems, has long shaped the nursing home business — and in ways that left it completely vulnerable when the viral pandemic arrived in March.

For years, extra money has gone to pay for extra services, encouraging some nursing home owners to game the system and tempting unscrupulous operators to file false claims for reimbursement. In the recent past, the gold standard was physical and occupational therapy; now it’s respiratory care.

But stringent infection control, which might have kept the coronavirus at bay, has never been a revenue producer, even now during the pandemic. Similarly, there is no monetary incentive to hire more registered nurses, although studies suggest they have been crucial in minimizing covid-19 casualties in nursing homes.

According to the article, the fee for service model is centered on additional care that will bring in additional funds to the provider, "and one consequence is that employees who handle general care of residents — nursing assistants, primarily — rather than the specialty services are a low priority for operators. They are underpaid and in chronically short supply at nursing homes across the country."

The article includes specific resident stories during the time of COVID and compares the financials for SNFs from resident stays covered by Medicare and Medicaid.  When COVID rampaged, folks put off surgeries, which affected the bottom line of many SNFs, per the article.

The temptation of the funding system leads some facilities to cross the line. "Working in a system that requires nursing homes to decide what extra services a resident needs, then provide those services, then bill the government, tempts some operators to game the rules and a few to commit outright fraud. Patients can be pushed into higher-paying categories of need. Services can be billed that were never rendered."

The lengthy article gives a really good picture of the funding system, how it works, the oversight and the remedies available to redress wrongdoing. I'm recommending this article to my students.

How SSA Hold Harmless Works

Concomitant with the announcement of the Medicare premiums for 2021 comes a blog post from SSA explaining how the hold harmless provision works. How the Hold Harmless Provision Protects Your Benefits explains that with some exceptions,  "the “hold harmless provision” protects ... Social Security benefit payment from decreasing due to an increase in the Medicare Part B premium... To qualify for the hold harmless provision, [the recipient] must: .... Receive Social Security benefits or be entitled to Social Security benefits for November and December of the current year [and the recipient's] Medicare Part B premiums for December and January [are] deducted from [the SSA] monthly benefits."

Read the blog here.

Register Now-SNT Webinar January 6, 2021

The Center for Medicare Advocacy announces their next webinar, Skilled Nursing Facility Updates, scheduled for Wednesday January 6, 2021 at 2:00 PM EST. To register, click here.