Elder Law Prof Blog

Ending the Week With A Happy Story

Published a few days ago in the New York Times,  Fully Vaccinated and Time to Party: If You Are 70,  notes "[o]der people, who represent the vast majority of Americans who are fully vaccinated against the coronavirus, are emerging this spring with the daffodils, tilting their faces to the sunlight outdoors. They are filling restaurants, hugging grandchildren and booking flights." The article features a number of elders who are resuming their pre-COVID lives now that they have been vaccinated. Or, as the author  describes it, "[f]or now, about two-thirds of Americans over 65 have started the vaccination process and nearly 38 percent are fully vaccinated, compared with 12 percent of the overall population, giving the rest of the nation a glimpse into the after times."

The stories will make you smile.

Global Report on Ageism

The World Health Organization released the Global Report on Ageism, which "outlines a framework for action to reduce ageism including specific recommendations for different actors (e.g. government, UN agencies, civil society organizations, private sector). It brings together the best available evidence on the nature and magnitude of ageism, its determinants and its impact. It outlines what strategies work to prevent and counter ageism, identifies gaps and proposes future lines of research to improve our understanding of ageism."

The executive summary is available here, discussing nature, scale, determinants, and impact of ageism, as well as strategies to reduce it and suggestions for actions. The entire 202 page report is available here.

Roundup on Nursing Home Articles

First, have you read this article from the New York Times? Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public

Twelve years ago, the U.S. government introduced a powerful new tool to help people make a wrenching decision: which nursing home to choose for loved ones at their most vulnerable. Using a simple star rating — one being the worst, five the best — the system promised to distill reams of information and transform an emotional process into one based on objective, government-blessed metrics.

The star system quickly became ubiquitous, a popular way for consumers to educate themselves and for nursing homes to attract new customers. During the coronavirus pandemic, with many locked-down homes unavailable for prospective residents or their families to see firsthand, the ratings seemed indispensable.

But a New York Times investigation, based on the most comprehensive analysis of the data that powers the ratings program, found that it is broken.

Then, a couple days later, another article from the New York Times, this time about California, California Sues Nursing Home Chain, Saying It Manipulated Ratings System

California prosecutors sued the country’s largest chain of senior living communities on Monday, accusing the company, Brookdale Senior Living, of manipulating the federal government’s nursing-home ratings system.

* * * 

The lawsuit is among the first of its kind to accuse nursing homes of submitting false information to Medicare’s ratings program. The system assigns stars — one being the worst, five being the best — to the nation’s more than 15,000 nursing homes.

Health News Florida explained that COVID Cases Plummet 83% Among Nursing Home Staffers Despite Vaccine Hesitancy, "Federal records show a steep decline in staff cases since December, when health care workers at thousands of nursing homes began getting their shots. Still, many are reluctant to get vaccinated."

Then, this New York Times article from Canada,  Elderly, Vaccinated and Still Lonely and Locked Inside

Long-term care homes, as they are called in Canada, were prioritized for the first precious doses of vaccines, to few objections — they were ground zero for the pandemic’s cruel ravage. Around 66 percent of the country’s terminal Covid-19 victims lived in nursing homes, among the highest rates in the world.

But while the vaccines have given the majority of nursing-home residents protection from death by the virus, so far they have not offered more life....

Webinar on Robocalls

DOJ's Elder Justice Initiative is offering this webinar, Tackling Transnational Robocall Scams: The Importance of State and Federal Partnerships  on April 13 at 2 eastern time. Here's info about the webinar

Consumers report losing approximately $500 million per year to phone scams. Phone scammers often impersonate government officials, such as officials with the Social Security Administration, FBI, IRS, and local law enforcement entities. This webinar will discuss what the scams are and how they work. It will delve into local and state law enforcement’s vital role in the fight against these scams. It will also describe investigative techniques that state and local law enforcement can use in the fight against transnational scammers. Finally, it will touch upon public education tools that can help community members protect themselves from scammers.  

Speakers:

Jolee Porter, Assistant US Attorney, Northern District of Georgia, currently detailed to the Transnational Elder Fraud Strike Force at the US DOJ Consumer Protection Branch

Senior Special Agent Jon Heslep, Office of Inspector General, Social Security Administration 

Detective Margaret Moore, Aiken Department of Public Safety, South Carolina

To register, click here.

The Storm in Texas May Be Over, But Care Gaps Still Exist

Kaiser Health News recently published a story, Texas Winter Storm Exposes Gaps in Senior Living Oversight. The storm

brought power failure and burst water pipes to millions of homes and businesses throughout Texas. But the impact, as is often the case in emergencies, was most profound on the state’s most vulnerable — including residents of senior living facilities.

Of the state’s 1,200 nursing facilities, about 50% lost power or had burst pipes or water issues, and 23 had to be evacuated, said [the] long-term care ombudsman for Texas. Of 2,000 assisted living facilities, about 25% had storm-related issues and 47 were evacuated. Some facilities reported building temperatures in the 50s.

The article discusses revisions to the regulations regarding emergency preparedness and the industry's responses, as well as the issues with other types of supportive housing.  The article also highlights how these "disasters of a century" are actually occurring more frequently, and the focus on disaster preparedness includes a conversation about requiring facilities to have generators. "In Texas, assisted living facilities are required to have emergency plans but not generators. The legislation introduced in the wake of  [the recent] winter storm ... seeks to change that. Independent living facilities ... might not be covered, though; they already have even fewer state guidelines to follow."

Podcasts on Scams

Educate yourself on the various scams, how they work and how to protect yourself by listening to these 7 podcasts from the New York Times. 7 Podcasts About the Art of the Scam "delve deeper into scam stories you may already know from the headlines ... and also illuminate some less familiar, like the extraordinary saga of how thousands of people were conned into blowing their life savings on a plot of worthless land in California."

California Releases Master Plan FOR Aging

California has released its Master Plan FOR Aging.  Here's the rationale for having a master plan:

Aging is changing and it’s changing California. California’s over-6o population is projected to diversify and grow faster than any other age group. By 2030, 10.8 million Californians will be an older adult, making up one-quarter of the state’s population.

The Master Plan for Aging outlines five bold goals and twenty-three strategies to build a California for All Ages by 2030. It also includes a Data Dashboard on Aging to measure our progress and a Local Playbook to drive partnerships that help us meet these goals together.

This is not a plan simply for today’s older adults. Instead, the Master Plan is a blueprint for aging across the lifespan. The Master Plan calls on all California communities to build a California for All Ages: for older Californians currently living through the many different stages of the second half of life; for younger generations who can expect to live longer lives than their elders; for communities of all ages – family, friends, neighbors, coworkers, and caregivers – surrounding older adults. As Californians, we can create communities where people of all ages and abilities are engaged, valued, and afforded equitable opportunities to thrive as we age, how and where we choose.

The five goals address health, housing, equity and inclusion, affordable aging, and caregiving. The plan is available here.

PHI issued a report regarding the direct care workers and the California Master Plan For Aging. Quality Jobs Are Essential: California’s Direct Care Workforce and the Master Plan for Aging

[P]rovides a detailed overview of the state’s direct care workforce and examines how California’s Master Plan for Aging can improve jobs for this rapidly growing workforce. It describes how the Master Plan supports this workforce, highlights where it incorporated the LTSS Subcommittee’s recommendations, and proposes where and how the Master Plan can be strengthened. This report also includes various stories from direct care workers in the state.

The report is available here for download.

The Housing Market: Booming and Booming?

The housing market is hot! We didn't need this New York Times article to tell us that, but it does and tells us more.   In this article, Where Have All the Houses Gone? let's start with this quote: "[a] majority of homeowners in America are baby boomers or older — a group at heightened risk from the coronavirus. If many of them have been reluctant to move out and downsize over the past year, that makes it hard for other families behind them to move in and upgrade.... There are lots of steps along the “property ladder,” ... that are hard to imagine people taking mid-pandemic: Who would move into an assisted living facility or nursing home right now (freeing up a longtime family home)?"

This article is not about the Boomers and home ownership, but since this is the elderlawprof blog, I thought it was important to mention the elder-aspect of this housing boom.  There are lots of reasons why the housing market is so tight, and the article explains them well.

Guardians' Role in Fighting Elder Abuse

Check out this new factsheet from the National Center on Elder Abuse, Role of Guardian Standards
in Addressing Elder Abuse. This five page fact sheet answers 16 wide-ranging FAQs and includes resources both within some of the FAQs and at the end of the fact sheet. It's worth checking out!

CMS Loosens Visitation Restrictions in Long-Term Care Facilities

CMS recently announced that it was expanding visitation, but with some safeguards still in place.  CMS Updates Nursing Home Guidance with Revised Visitation  addresses indoor visits, indoor visits during an outbreak, compassionate care visits, ombudsman visits, and vaccinations for both visitors as well as surveyors.  The revised guidance is available for download here.

Prior to the CMS revised guidance, there was some effort to increase visitation, including efforts by the National Consumer Voice for Quality Long-Term Care.  Consumer Voice, Other Advocates Call on CMS to Safely Open Nursing Home Doors offers this call to action: "[C]alling on CMS to restore full visitation rights as soon as possible. In the interim, and during the Public Health Emergency only, we are urging CMS to ensure that: ... [e]ach resident is allowed an essential support person (ESP) ... [and] [a]ll residents are allowed indoor and outdoor visitation in addition to visits with an ESP. " Their letter of recommendation is available here.  More info about their efforts, including a virtual rally, are available here and here.

 

Webinar on Person-Centered Services and Long-Term Care

Mark your calendars now for this upcoming webinar from AARP and the D.C. Office of the A.G. on Person-Centered Services and Long-Term Care,scheduled for March 10 at 11 eastern. Here's more info about this webinar:

People living in long-term care facilities, or receiving long-term care services, have the right to make their own decisions about their care and to lead those discussions. Join us to learn more about what Person-Centered Services means for people receiving long-term care, for their families and for service providers, especially now with the challenges imposed by the public health emergency.

Click here to register. 

Financing and Planning For Your Longevity

The New York Times discussed  planning and saving for your longer life in the article,  If You Live to 100, You’ll Need More Than Money. As more folks reach the 100 years old marker, it's more than just having enough money to live on. The article focuses not just savings, but planning and identifying a purpose. According to one financial advisor featured in the article, "[w]hile focusing on their savings goals, [he] also helped them embrace life planning, which asks: Besides not outliving your money, how can you make your life meaningful in retirement, which could last three decades or more?"

Here's some interesting data about centenarians from the article. "The growth in the 100-plus age group is partly a result of better medical care and a combination of improved lifestyle factors. This cohort has expanded 44 percent since 2000, according to a C.D.C. study. Eighty percent of centenarians are women. And in about 40 years, the number of people 100 and older will be six times as high as it is now, according to the Census Bureau."

The article discusses factors that may lead to reaching the 100 year old mark. If you are feeling optimistic, you might check out this calculator:

In recent years, estimating longevity and planning for it have become more sophisticated. The LivingTo100 longevity calculator, developed by Dr. Perls, is a good place to start to get a rough estimate of your life span and what you can do to improve your odds of living longer, should you want to go down that path.....

Vaccinated as Requirement for Job?

It was only a matter of time, once the COVID vaccines became available, that we saw this question being discussed.  Can Long-Term Care Employers Require Staff Members to Be Vaccinated? was the subject of a recent article in the New York Times.

It’s a question that many long-term care employers, from individual families to big national companies, are confronting as vaccines become more available, although not available enough: In a pandemic, can they require vaccination for those who care for very vulnerable older adults? Should they?

Some employers aren’t waiting. Atria Senior Living, one of the nation’s largest assisted living chains, has announced that by May 1 all staff members must be fully vaccinated.

These requirements are not without controversy. How many employers will mandate this remains to be seen. Think about this in the long term care setting, where employees are in close and frequent contact with vulnerable residents.  The article offers this interesting info:

Experts say it is probably legal for employers to make vaccination a condition of employment. The federal Equal Opportunity Employment Commission has agreed, so long as mandates permit health and religious exemptions. A University of Pennsylvania analysis found last fall that nationally, about half of American adults would consider employer mandates acceptable.

One expert mentioned that these vaccines were approved under an emergency mandate, and are not yet approved by the FDA, although that is expected to be coming soon.  As far as the mandate, this expert offered this view "Ethically ... it’s entirely justified. People have the right to take chances with their own health, but they absolutely do not have the right to endanger others.”

The article discusses incentives employers may offer to get more folks vaccinated and the challenges in getting direct-care workers vaccinated.

Stay tuned....

PS-for those who are members of ASA, this issue was part of a podcast offered in February for members

Working Past Retirement Age, Because You Want To Do So

Not everyone wants to retire. Some folks continue to work because they need to while others continue to work because they want to do so. The Washington Post addressed this in a recent article,  Don’t want to retire? Here’s how to maintain a fulfilling career into your 80s and beyond. "People age 75 and over, including our fresh-on-the-job president, are the fastest-growing group in the labor force, even though “age discrimination is very real,” said Susan Weinstock, vice president of financial resilience at AARP." The author of the article explores the wellness advantages of continuing to work and reviews the habits of those interviewed for the article:

1. view work as pleasure
2. healthy eating and exercise is a must.
3. Keep stress in check.
4. Mentor and nurture others, as well as yourself.

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

 

Will The Nursing Home Model Finally Change?

NBC News ran this story, America now knows that nursing homes are broken. Does anyone care enough to fix them? .  Once COVID starting sweeping through facilities last year, more folks learned about the current model of providing long-term care, and their short-comings.  Experts began calling for reform on the way we provide SNF care in the US. But did that call for reform get drowned out by the daily news about the havoc COVID was wreaking on our country?

The NBC News story ran yesterday (thanks to my colleague and dear friend Professor Bauer for sending me the link).

The pandemic turned nursing homes into a death trap for more than 170,000 long-term care residents and staff members who have lost their lives to Covid-19.

But the virus also revealed how America’s system for long-term care is fundamentally broken in ways that will continue to harm vulnerable residents and workers, long after the pandemic has faded away.

The biggest underlying problem? For all the billions of taxpayer dollars that the United States spends on a system meant to care for frail, elderly residents, not enough money is being invested in caregiving itself, according to interviews with more than a dozen nursing home researchers, advocates, industry representatives and staff members.

There are two sides to this issue, as noted in the story, as well as an opportunity for reform, complete with roadblocks to achieving it.

Nursing homes, by their nature, are ideal breeding grounds for Covid-19: Frail, elderly residents live in close quarters, often requiring support from aides to eat, get out of bed, bathe and get dressed.

This hands-on caregiving is the backbone of what a nursing home provides, and the reason that most residents are in long-term care to begin with. But a chronic failure to value this work, and compensate it accordingly, helped accelerate the pandemic’s catastrophic spread, experts said.

Staffing shortages are discussed in the article, along with explaining how those shortages contribute to a greater risk of a COVID outbreak. The work these folks provide is undervalued both in terms of salary as well as the role they play in providing care. 

The section of the article on funding is quite illuminating

The typical U.S. nursing home is propped up by two programs: Medicaid, ... and Medicare, ....This is the business model that the pandemic blew up.

America’s long-term care system was created as an afterthought, when nursing home coverage for poor, frail Americans was included, without much fanfare, as part of the 1965 law .... A half-century later, the elderly population has ballooned, and life expectancy has shot up, while personal savings have not, leaving millions of aging Americans unable to pay for the care they need. But unlike most major industrialized nations, the U.S. has no universal public system that covers elder care, which means that many patients, as well as nursing homes, are ultimately left to rely on Medicaid.

The trouble with Medicaid — the only federal program that pays for long-term care — is a reimbursement rate that the industry has long complained is too low, about $200 for each day of care, on average. Medicare pays at least twice as much, but it only covers up to 90 days of post-acute care and rehabilitation, typically following a hospital stay.

The article discusses accountability, the use of third-party contractors, quality of care transparency (or a lack thereof) and lobbying efforts. The article looks at proposals to change the industry. I'm assigning it to my students and we will discuss it in class. I recommend it to you.

SNF Residents Vaccinated; Socialization Resumes

Let's end the week with a happy story, shall we? The New York Times featured the return to "normal" for one nursing home.  After Vaccines, Joy, Relief and Game Night

The first day back was full of ordinary moments: small talk over coffee, bidding wars at an afternoon auction, a game of dice. But after a year of loss, loneliness and disruption, the very ordinariness of it all brought joy and relief.

There's losses, sadness and joy.  It's a happy way to end the week.

COVID and Individuals With Dementia

Two articles that bear reading, both from the New York Times.

First, an op-ed  We Are Going to Keep You Safe, Even if It Kills Your Spirit’ in the New York Times, examining the impact of COVID and isolation on folks with dementia. This is an important read. The article highlights the challenges for those individuals and mask-waring and social distancing, as well as how the disruption of their routines impacts them.

People with dementia “may not adequately comprehend, execute, or recall any of the suggested public health measures,” as the Alzheimer’s Association puts it. Also, it’s not possible to social-distance when you live in a nursing home, as about 15 percent of people with dementia do, and when you need help eating and going to the bathroom.

Even those who stay free of the virus have suffered disproportionately from the disruptions of pandemic life. Dementia responds well to routine: rigid, time-blocked schedules and familiar faces. But the pandemic has shown us, and warned us, how quickly the fragile channels of dementia care — the muddled blend of formal and informal networks that sustain those routines — can collapse under strain.

Second, another New York Times article,  People With Dementia Are Twice as Likely to Get Covid, Huge Study Finds

People with dementia had significantly greater risk of contracting the coronavirus, and they were much more likely to be hospitalized and die from it, than people without dementia, a new study of millions of medical records in the United States has found.

Their risk could not be entirely explained by characteristics common to people with dementia that are known risk factors for Covid-19: old age, living in a nursing home and having conditions like obesity, asthma, diabetes and cardiovascular disease. After researchers adjusted for those factors, Americans with dementia were still twice as likely to have gotten Covid-19 as of late last summer.

Help for Unpaid Caregivers?

Will the administration provide support for family caregivers?  This was the subject of an opinion published in the New York Times. 50 Million Americans Are Unpaid Caregivers. We Need Help. focuses on the author's personal experiences as a family caregiver. Consider this: "It’s often noted that the United States is alone among rich nations in not providing maternity leave; support for child care is likewise abysmal. Similarly — but often more invisibly — we leave millions of caregivers with little or no support in managing the financial, logistical and emotional difficulties of helping ailing parents, spouses and children."  Referencing the pledge made during the campaign, the author notices the benefits:

The changes would help not just caregivers like me; what’s good for caregivers also benefits those who need assistance. Expanding home care can keep frail elderly people out of nursing homes, the drawbacks of which have been painfully exposed by the pandemic. Easing financial strains and burnout for caregivers can mean better, more compassionate treatment, which in turn can improve quality of life and outcomes for our most vulnerable citizens.

Mass. Medical Aid-In-Dying Bill Reintroduced

The End of Life Options Act has been reintroduced in Massachusetts. This article notes an overwhelming support by U.S. adults for aid-in-dying.  The article also includes a short podcast of the story. If this bill passes, Massachusetts will join a handful of other states where aid-in-dying is legal Stay tuned.

Mark you Calendars: Ann F. Baum Memorial Elder Law Lecture U. of Ill. Law

The annual Ann F. Baum Memorial Elder Law Lecture at the University of Illinois College of Law is scheduled for March 10, 2021 at noon (central) virtually.  This year's lecture, "Ways of Thinking About Medical Care: Alternative Models and Structures and Their Policy Significance" will be presented by James F. Blumstein, Vanderbilt University of the University Professor of Constitutional Law and Health Law & Policy and Professor of Management, Owen Graduate School of Management, Director, Vanderbilt Health Policy Center.

Here's a description of the presentation:

Traditionally, medical care has been understood to function under a professional paradigm; medical decisions are considered purely scientific under a standard of “medical necessity.” Medicare and Medicaid were based on this model, where economics has little sway. Over time, an alternative model, an economic paradigm, has gained traction. Under the alternative model, economics plays an important role in medical decisionmaking. The professional model had a strong influence on the design and structure of Medicare and Medicaid, with significant consequences in terms of cost escalation. Medicaid, in particular, has been an uncapped entitlement program of federal/state spending. About 20 years ago, Medicaid introduced managed care, which allowed for consideration of economic factors in medical decisionmaking. And, at the same time, the Children’s Health Insurance Program (CHIP) developed a competing model for federal/state healthcare spending. The Affordable Care Act  (ACA) relied on cost savings from projected Medicare spending to fund increased access to care, a clear recognition of the salient role of economics in supporting expanded access to care. Most recently, the federal government has approved a Tennessee Medicaid waiver, essentially transferring the CHIP funding model to the context of Medicaid. The interplay of economics and program design/structure in healthcare programs, culminating in the recent Medicaid waiver for Tennessee, will form the centerpiece of this year’s Baum Memorial Lecture.

Here is the info to attend

Join by Zoom Meeting

https://illinois.zoom.us/j/86080084604?pwd=enVlbEtyZVN6bFMxR0lyUE9udUhuUT09

Meeting ID: 860 8008 4604
Password: 041404

Join by Skype for Business

https://illinois.zoom.us/skype/86080084604

Thanks to Professor Kaplan for letting me know about this wonderful program!