Elder Law Prof Blog

Still Vaccine Sign Up Problems for Elders

Still? Yes still. Seniors Seeking Vaccines Have a Problem: They Can’t Use the Internet  tells us something we already know (and I have already blogged about).

The chaotic vaccine rollout has come with a maze of confusing registration pages and clunky health care websites. And the technological savvy required to navigate the text alerts, push notifications and email reminders that are second nature to the digital generation has put older adults like Ms. Carlin, who need the vaccine the most, at a disadvantage. As a result, seniors who lack tech skills are missing out on potentially lifesaving shots.

The article explains various agencies and efforts to help those without internet access but more needs to be done.  

There's got to be a better way. Is it really this hard?

The "Forgotten for COVID" Elders?

Despite projects to vaccinate those elders who are homebound or lack internet access, we are still lagging behind on reaching them, according to a story today in Kaiser Health News.  Countless Homebound Patients Still Wait for Covid Vaccine Despite Seniors’ Priority starts with the good news-recognizing the unique outreach efforts by hospitals, health systems, and paramedics, for example. These folks are home are highly vulnerable. Described by one expert in the article as a "hidden group", they are at great risk, "[b]y virtue of their age and medical status, these seniors are at extremely high risk of becoming seriously ill and dying if they get covid-19. Yet, unlike similarly frail nursing home patients, they haven’t been recognized as a priority group for vaccines, and the Centers for Disease Control and Prevention only recently offered guidance on serving them." The article notes that those professionals whoa are regularly in contact with them are not those with access to vaccines.  Medicare's reimbursement rates for time-consuming house calls doesn't allow the health care professionals to recoup their costs, notes the article.  Not only that, knowing the storage requirements for the vaccines doesn't mean a health care professional can just hop into their car and drive around with the vials in a cooler.

So this brings us to this story, a new hero for all of us! Last week in the New York Times, Woman, 90, Walked Six Miles in the Snow for a Vaccine
explained how after that recent snow storm, driving was out for her, but given all her previous failed efforts to get the vaccine, she wasn't going to miss this opportunity.

Where's Rosie the Riveter when we need her?? Surely "we can do it" or at least do better?

SNF Staffers Explain Position on Vaccine

A  week or so ago, stories started to emerge that SNF employees were passing on the opportunity to get the COVID vaccine.  Kaiser Health News ran this article, explaining some views Vaccine Hesitancy vs. Vaccine Refusal: Nursing Home Staffers Say There’s a Difference.

The reluctance of one staffer interviewed for the article  was noted to be shared by others: "[this] hesitancy has been echoed by nursing home staff members across the state and country. But [the staffer's] reasoning — as well as that of her colleagues who also opted against the vaccine that day — goes far beyond a simple yes or no. The decision is complicated and multifaceted, they said, which means persuading them to say yes will be, too."

In reaction to the stories that SNF employees were refusing the vaccine, the article goes on to explain: "[S]ome nursing home staffers say their reluctance is being misconstrued. Most are not saying they’ll never take the vaccine, but simply that they have concerns about such a new product. They understand it went through months of clinical trials, but what about possible long-term side effects, for instance? Or how did politics play into the development process? For communities of color, their historical mistreatment by the medical system can also factor into the decision."

The article also reports on various approaches taken by SNFs to get their employees to get vaccinated.

Upcoming Webinars

Register now for two upcoming webinars.

1. Webinar: Financial Protection for Older Adults During the COVID-19 Pandemic set for Feb 23, 2021 at 1 eastern. 

Join experts from the Consumer Financial Protection Bureau (CFPB), the Federal Communications Commission (FCC), and ACL on Tuesday, February 23 at 1 pm ET for a free webinar on financial protection of older adults during the COVID pandemic. The FCC will begin the program with an overview of coronavirus-related phone scams targeting older adults. The CFPB will share resources to help older adults address the financial impact of the pandemic. HHS will conclude the webinar with a discussion of the role of the aging services network.

Click on FCC live link to join the webinar on Feb 23 at 1 eastern.

2. A series of 3 webinars from the DOJ Elder Justice Initiative;

• March 4^th 2pm EST  |  Programs for Older Adults Who Have Experienced Financial Exploitation. Learn about three distinct programs designed specifically for older adults who have experienced financial exploitation. Register here.

• March 23^rd 2pm EST  |  The Path Forward: One MDT’s Journey to Address the Impact of Racial Injustice on Their Work. The Hennepin County Minnesota Adult Protection/Law Enforcement Multi-Disciplinary Team “MDT” provides a model case study of the impact of racial injustice on their work as an elder abuse MDT in Minneapolis. Register here.

• April 13^th 2pm EST  |  Tackling Transnational Robocall Scams: The Importance of State and Federal Partnerships Features a Federal and State partnership that successfully fought against computerized autodialing “robocall” scammers.  Register here

Vatican: Rethink How Care for Elders

Recently released: The Vatican wants the world to rethink how it cares for the elderly after Covid-19 ‘massacre’.

The Vatican is calling for a new paradigm of care for older people after what it calls the "massacre" wrought by the coronavirus pandemic, which has disproportionately killed people living in nursing homes.

The Vatican's Pontifical Council of Life issued a position paper Tuesday that made the case for a global rethink of how to care for people in their final years, including resisting any rush to institutional care in favor of adapting home environments to the needs of people as they age.

Calling for visionary thinking to develop a new way of providing care for elders,  "[t]he document praised new models of assisted living that provide companionship and care where needed but, in preserving autonomy and independence, fall short of an institutional facility. And it called for greater assistance to families who are able to care for their loved ones at home for as long as possible."

More COVID articles

First, good news from California. Recognizing the issue with elders who may not be able to get to vaccine sites (or sign up online....), Kaiser Health News reports on one solution in California.  Vaccines Go Mobile to Keep Seniors From Slipping Through the Cracks

The team of county nurses and nonprofit workers is targeting Contra Costa County residents who are eligible for covid vaccines but have been left out: residents of small assisted-living facilities that haven’t yet been visited by CVS or Walgreens, and occasionally people who live in low-income senior housing. The retail pharmacy giants have a federal government contract to administer vaccines in most long-term care facilities.

Launched a few weeks ago, the strike team moves through each vaccination clinic with practiced choreography. At a small group home in Antioch recently, a nurse filled syringes while another person readied vaccine cards and laid them on a table. An administrative assistant — hired specifically for these clinics — checked everyone’s paperwork and screened them for symptoms and allergies before their shots, logging them into the state’s database afterward. After the shots, a strike team member told each person when their 15 minutes of observation was up.

The endeavor is going to take time because there are so many of these facilities, many of which have just a handful of residents.  It may be slow-going, but it's going!!!!

So that was the good news. Now for the not-so-good, but not surprising news from this article also published in Kaiser Health News: Family Caregivers, Routinely Left Off Vaccine Lists, Worry What Would Happen ‘If I Get Sick’.

Tens of thousands of middle-aged sons and daughters caring for older relatives with serious ailments but too young to qualify for a vaccine themselves are  ...  terrified of becoming ill and wondering when they can get protected against the coronavirus.

Like aides and other workers in nursing homes, these family caregivers routinely administer medications, monitor blood pressure, cook, clean and help relatives wash, get dressed and use the toilet, among many other responsibilities. But they do so in apartments and houses, not in long-term care institutions — and they’re not paid.

““In all but name, they’re essential health care workers, taking care of patients who are very sick, many of whom are completely reliant upon them, some of whom are dying... Yet, we don’t recognize or support them as such, and that’s a tragedy.”

If the caregiver is older and meets the age-threshold for the caregiver's particular state, then the caregiver is eligible for vaccination that way. But the younger caregivers are out of luck right now.  This is an important article. Read it!

ACTEC Journal Call for Papers

Pursuant to the request from the Editor of the ACTEC Law Journal.

 

Call For Papers: ACTEC Law Journal

Modernizing Trusts and Estates

The American College of Trust and Estate Counsel announces a Call For Papers on the following topic:

As trusts and estates academics and practitioners look forward into the remainder of the 21^st century, we acknowledge the aspects of law and practice that are changing, that should change, and that should resist change.

A special issue of the ACTEC Law Journal will be devoted to a discussion of the topic of Modernizing Trusts and Estates and will be comprised of shorter articles (2,500-5,000 words).  The issue will focus on what matters are of most importance to the forward-looking trusts and estates professional.  Topics may include developments in tax law, adaptations in legal technology, racial justice and diversity, new or impending statutory reform, remote or electronic estate planning documents, the funeral and death industry, and other topics that demonstrate the way in which the trusts and estates landscape is shifting.

Procedure for proposals: Authors wishing to contribute to this special volume should send a brief proposal with estimated word count to Professor Alyssa A. DiRusso, Editor, ACTEC Law Journal, at [email protected].  Please include “ACTEC Theme Volume” in the subject line of your e-mail.

Proposals are due by March 15, 2021 and authors will be notified whether their article has been selected for publication by April 1, 2021.  Given the brevity of each article, articles that delve into one or two topics in detail will normally be preferred over more general articles. We encourage submissions by authors from a variety of backgrounds, including those actively involved in fiduciary administration or the practice of law.

Final articles will be due no later than August 1, 2021, and earlier submissions are welcome. Selected articles will be published in the ACTEC Law Journal, Volume 47 Issue 1, with an anticipated publication date of December 2021.

What Did NY Cause When Transferring COVID Patients From Hospitals to SNFs?

Read these three articles, to get a full picture of what happened. First, the AP story: AP: Over 9,000 virus patients sent into NY nursing homes. Next, the CNN story: New York governor's top aide apologizes and says administration 'froze' after inquiries on Covid-19 deaths at long-term care facilities. Finally, Politico's story: Top Republicans call for Cuomo's ouster following nursing home revelation.

This follows the release a few weeks ago of a report by the NY AG that indicated the state had failed to accurately count deaths.  The NY AG report is available here. 

 

SNF Chain Exec. Gets Big Bonus

Sen. Warren calls Genesis Healthcare executive bonus act of ‘unfathomable greed’ according to the recent article published in the Washington Post.

A nursing home chain that gave its former CEO a $5.2 million “retention payment” at the height of the pandemic has received a sharp rebuke from Sen. Elizabeth Warren (D-Mass.), who sits on the Senate’s Special Committee on Aging.

Warren called the payout by Genesis Healthcare to George Hager Jr. — at a time when the death toll among residents was approaching 2,800 and the company was relying on federal emergency aid to survive financially — “inexplicable and unseemly” in a letter dated Jan. 27. She asked the company board to explain its decision and to provide the minutes of all meetings in 2020 where compensation was discussed. And she warned the company not to seek additional emergency relief from Washington.

Senator Warren's letter is available here. Stay tuned-more will come.

Hands-Free Shoes

Nike has announced their hands-free shoes, Go Flyease. The article,  Nike made a hands-free shoe and you have to see it to believe it describes this new shoe. "[I]t's Nike's first pair of lace-less sneakers that can easily be put on and taken off without using your hands. The casual shoe arrives at a time when people are touching fewer things during the pandemic and a revival of comfier counterparts that take minimal effort to take on and off ...."  The description and the video demo make it look easy-peasey: "[t]he Go Flyease has unique features, including a tension band that secures the shoe in place of laces. Putting them on involves just stepping into the shoe so that it will snap into place. Taking them off is done by stepping on the heel."  Think about the advantages this will for certain folks, beyond those who are trying to limit their touching.

Thanks to Professor Feeley for sending me the article.

More on Shield Laws

Periodically I will see items about businesses seeking protection against liability for injuries to others that occurred during the pandemic.   It's not just SNFs seeking protection. Here are a couple of updates on the topic.

First, a Florida-specific article, Brandes bill shielding business from coronavirus suits gets backing in Senate.

The Senate Judiciary Committee on Monday approved a proposal that would give Florida businesses that “substantially” comply with public-health guidelines broad protection from coronavirus-related lawsuits filed by customers and employees.

The bill (SB 72) would not apply to health-care providers such as hospitals, nursing homes and physicians, who have been clamoring for protections since spring. Instead, the bill would help shield other types of businesses and educational and religious institutions from claims for damages, injuries or deaths.

Then, an article from NPR, Why Nursing Homes' COVID-19 Legal Shields May Interfere With Other Cases.  Here is a summary: "[o]ver the course of the pandemic, 27 states have granted legal immunity to nursing homes. Some advocates worry this temporary reprieve is being used to hide misconduct not related to the coronavirus."  The link includes the podcast as well as a transcript.

 

Two More Resources on Fighting Elder Abuse

In case you missed these, here are two recently released resources on fighting elder abuse. The latest elder abuse roll call video is on an elder abuse guide for law enforcement interviewing older adults.  It is part of a series of roll call videos. all of which are available here. 

As well, there is an update to a toolkit, Supports and Tools for Elder Abuse Prevention (STEAP) Initiative Toolkit Updates. The updated toolkit can be accessed here.

 

Wrongful Life Litigation

A couple of weeks ago the New York Times ran this article,  Filing Suit for ‘Wrongful Life’, which asks this question: "More Americans are writing end-of-life instructions as the pandemic renders such decisions less abstract. But are medical providers listening?" The article features one case in litigation where the surviving spouse claimed that the health care providers failed to honor the patient's directive claiming the health care providers "disregarded a New York State MOLST — medical orders for life-sustaining treatment — form and his spouse’s explicit instructions to a doctor who called to seek her guidance."  The article gives a good explanation of the issues and a review of prior cases on similar topics. This is an important issue and I'm going to have my students read the article.

Justice Prevails: DOJ Announces Settlement

DOJ announced a settlement, Marketing Company Agrees to Pay $150 Million for Facilitating Elder Fraud Schemes

Epsilon Data Management LLC (Epsilon), one of the largest marketing companies in the world, has entered into a settlement with the Department of Justice to resolve a criminal charge for selling millions of Americans’ information to perpetrators of elder fraud schemes. 

Epsilon entered into a deferred prosecution agreement (DPA) with the Consumer Protection Branch of the Justice Department’s Civil Division and the U.S. Attorney’s Office for the District of Colorado in connection with a criminal information charging the company with one count of conspiracy to commit mail and wire fraud.

Under the terms of the DPA, which the parties submitted to the district court in Denver on Jan. 19, 2021, Epsilon agreed to pay a total of $150 million, with $127.5 million of that amount going to compensate victims of the fraudulent schemes that used consumer data sold by Epsilon. Epsilon also agreed to implement significant compliance measures designed to safeguard consumers’ data and prevent its sale to individuals or entities engaged in fraudulent or deceptive marketing campaigns. Further, the DPA requires Epsilon to maintain a procedure for consumers to request that it not sell their information to others.

Thanks to Professor Podgor for sending this to me.  It's nice to read good news!

NY Nursing Homes and COVID

A couple of recent articles about NY SNFs will make you stop and think.... hmmmm.. First, Politico noted a recent NY AG report New York undercounted nursing home deaths by as much 50 percent, report finds.. Nursing Home Response to COVID-19 Pandemic report includes preliminary findings

OAG’s preliminary findings are:

» A larger number of nursing home residents died from COVID-19 than DOH data reflected.

» Lack of compliance with infection control protocols put residents at increased risk of harm during the COVID-19 pandemic in some facilities.

» Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings4 had higher COVID-19 fatality rates than facilities with higher CMS Staffing ratings.

» Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm during the COVID-19 pandemic in some facilities.

» Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm in some facilities.

» The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE.

» Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and,

» Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.

Then consider this article in the Washington Post. Andrew Cuomo’s bad ‘who cares’ answer on coronavirus nursing home data

Facing a brutal report from his own party’s state attorney general that said the state had undercounted nursing home deaths from the virus, Cuomo essentially argued that it’s neither here nor there.

“Look, whether a person died in a hospital or died in a nursing home, it’s — the people died,” Cuomo said. “People died. ‘I was in a hospital, I got transferred to a nursing home, and my father died.' ‘My father was in a nursing home, got transferred to a hospital, my father died.’ People died.”

It does matter. As the article notes "there are major and very valid questions about whether nursing home policies led to unnecessary ones. To the extent that more deaths occurred in or came from that setting, it allows us to evaluate how significant that problem was and how much corrective action is needed."

Webinar on Guardianships

Mark your calendars now for this important webinar, Advancing Guardianship Reform through Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) on Feb. 9, 2021 at 2 eastern.

Improvements to state adult guardianship systems can include the promotion of less restrictive options, strengthening rights, and ensuring accountability. To make real changes in law and practice requires the collaboration of courts with stakeholders in the legal, aging, and disability communities. Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) or similar collaborative entities in many states have begun to forge positive changes.  

The 2020 American Bar Association Commission on Law and Aging WINGS Briefing Paper makes key findings and recommendations about the effectiveness of WINGS and the need for their long-term, systemic support. This webinar will highlight the WINGS Briefing Paper findings and recommendations, and summarize guardianship reform obstacles and efforts and the development of WINGS. Presenters will also offer tips to establish or enhance WINGS in your state.

Click here to register.

Age Diversity in the President's Cabinet

Usually when I blog about ageism, it is not a story about something positive. So it's nice to see a positive take on age diversity.  How age diversity in a presidential Cabinet could affect policies and programs explains that "[h]aving so many advisers of different ages should – theoretically – bring perspectives from different age groups and better represent constituents of different ages." The section on intergenerational politics discusses whether the various generations lean conservative, moderate or liberal in their politics.

Age-based political theories are based on aggregate behaviors. They do not predict the political persuasions of an individual voter or political leader. After all, Sen. Bernie Sanders, at 79, is one of America’s most progressive senators.

Age is especially less likely to determine political allegiance among racial and ethnic minorities. These groups tend to vote more Democratic regardless of age.

Thanks to Professor Naomi Cahn for sending us the link to this article.

COVID & SNFs: Good News

Well at least there is some good news on the vaccination front.   Last week the New York Times reported  Nursing Homes, Once Hotspots, Far Outpace U.S. in Covid Declines.

Throughout the pandemic, there has been perhaps nowhere more dangerous than a nursing home. The coronavirus has raced through some 31,000 long-term care facilities in the United States, killing more than 163,000 residents and employees and accounting for more than a third of all virus deaths since the late spring.

But for the first time since the American outbreak began roughly a year ago — at a nursing care center in Kirkland, Wash. — the threat inside nursing homes may have finally reached a turning point.

The article explains

Experts attribute the improvements in large part to the distribution of vaccines. About 4.5 million residents and employees in long-term care facilities have received at least one dose of the vaccine, according to the Centers for Disease Control and Prevention, including about 2.1 million who have been fully vaccinated.

Other factors, including the steep drop in new infections nationwide in recent weeks, may have contributed as well.

Just good news....finally, for this important group of our population.