Tuesday, May 26, 2020
George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona." This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed. She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years. Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."
It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.
At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.”
Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."
Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.
She questions the statistical basis for some governments' decisions to impose mandatory isolation:
The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.
But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?
She is provocative. She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.
For more, read the full blog post linked above. For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!
May 26, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Housing, International, Statistics | Permalink | Comments (0)
The American Bar Association Commission on Law & Aging (COLA) has released their annual update of elder abuse statutes. The chart runs 61 pages, is organized by state, and can be accessed here.
The chart includes statutes & case law, mandatory reporters, when & how to report as well as other resources. Bookmark this-it's an important resource!
Monday, May 25, 2020
On Memorial Day, we have important opportunities to think. Today, I've been thinking about those lost in wars and those who survive. A year ago, I joined a group doing a World War II memorial tour of England and France. I was unprepared for how much walking the beaches at Normandy and the nearby cemeteries would affect me. Even though my family was not directly impacted by that war, it was a reminder that we are all affected by tragic losses of life.
Today I also just read a very thoughtful piece written by Marcella Goheen for the New York Times. An image of another war emerges. She explains how her husband at age 65 has been affected by a neurodegenerative disorder that makes it impossible for him to care for himself, and eventually became so severe that it also was impossible for her to care for him at home. We forget that "nursing homes" are often not just for the very elderly, and can become the short-term or long-term homes of anyone with severe disabilities. But that doesn't mean that people go there "to die."
There is life in a nursing home. My husband worked in special education for over 20 years. He understands deeply the value of a life, no matter what form that life takes. He would fight for his fellow residents if he could. I feel betrayed because, while leaders like Gov. Andrew Cuomo and Mayor Bill de Blasio were speaking in their daily news conferences of the “vulnerable population” that needed the most help, not one federal, city or state agency prioritized preventing the loss of life in nursing homes. Instead, officials fought over whose responsibility it was to serve the chronically ill, elderly and disabled people who live in New York State nursing homes. In a mid-April news conference, Governor Cuomo said that “it’s not our job” to provide personal protective equipment to nursing homes in New York City.
My husband was thrown into a war on the vulnerable without a chance — he cannot care for himself or protect himself from a virus that doesn’t have a vaccine. The fact that he is still alive is a miracle. As of May 10,it was likely that over 5,000 residents in nursing homes statewide had perished. They matter. To be given a chance to live is a human right, and the business of care that impedes this right in any way needs a major reckoning. Not testing health care workers and residents, not addressing staffing shortages, not updating families on loved ones’ conditions and not producing effective plans for managing infections within nursing homes is unacceptable.
There is much more to The Crisis at My Husband's Nursing Home, where she reports that 98 have died with diagnoses of Covid-19.
Sunday, May 24, 2020
Is What CMS Doesn't Say as Important as What CMS Does Say in Recommendations for "Reopening" Nursing Homes?
On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19."
In some ways, nursing homes may be breathing a sigh of relief as the memo does not use any mandatory language directed at the operators. In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases. The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. What does that mean? You should be able to test everyone before you ease visiting restrictions, but you can choose not to do so? On page 4, CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan. The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines, although with no hard numbers for such oversight suggested.
CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases."
Significantly, there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination. That seems to me, at least, especially short-sighted.
May 24, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, May 22, 2020
Lawyering Challenges in Pandemic Times: How to Tell Clients What They Don't Want to Hear about Waivers of Liability
Recently, I had two overlapping communications. One was via email, with a lawyer who is advising community groups on whether, how, and when to reopen summer activity programs for children. The second was by phone, when a gym I belong to called to advise it was reopening in a few days and would honor my prepaid short-term membership, the otherwise expired membership I'd just happened to purchase on February 1. One condition of returning to the gym would be my signature on a Covid-19 specific release of liability. These conversations caused me pause, in part because I teach Contracts, a first year course, and we often discuss the viability of "releases of liability."
In connection with the first conversation, I reread and shared a copy of a Pennsylvania Supreme Court case, Feleccia v. Lackawanna College, 215 A.3d 3 (Pa. 2019). The parties presented two questions to the court: (1) whether the Pennsylvania college was required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the student-athletes, and (2) whether an exculpatory clause releasing "any and all liability" is enforceable as to negligence in the absence of any specific reference to "negligence." In a detailed analysis, with two justices filing concurring and dissenting opinions, the Court concluded:
For all the foregoing reasons, we hold appellants [the College parties] had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice of March 29, 2010, and there is a genuine issue of material fact regarding whether appellants breached this duty. Moreover, although the Waiver bars recovery for appellees' damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising from gross negligence or recklessness, and there remain factual questions regarding whether appellants' conduct constituted gross negligence or recklessness.
I think it is fair to predict that clients who actually seek a lawyer's advice before reopening operations in the wake of easing Covid-19 restrictions are hoping to hear that "a release" will protect them from liability. I think I can also predict that lawyers, in any state, will find it challenging to give legal advice in this environment without significant caveats, especially about the use of releases.
Thursday, May 21, 2020
NYT: Homes with Significant Number of Black and Latino Residents Twice as Likely to Be Hit by Coronavirus
The New York Times offers deep analysis of the impact of race on coronavirus infection rates in nursing homes. A lot to unpack, starting here:
The coronavirus pandemic has devastated the nation's nursing homes, sickening staff members, ravaging residents and contributing to at least 20 percent of the nation's Covid-19 death toll. The impact has been felt in cities and suburbs, in large facilities and small, in poorly rated homes and in those with stellar marks.
But Covid-19 has been particularly virulent toward African-Americans and Latinos: Nursing homes where those groups make up a significant portion of the residents -- no matter their location, no matter their size, no matter their government rating -- have been twice as likely to get hit by the coronavirus as those where the population is overwhelmingly white.
For more issue spotting, read The Striking Racial Divide in How Covid-19 Has Hit Nursing Homes.
Wednesday, May 20, 2020
Under pressure from media and advocacy groups, Pennsylvania's Departments of Health and Human Services have recently published statistics about how many residents and employees at a large number of long-term care facilities have been diagnosed with Covid-19 and how many, if any, have died with the diagnosis. The spreadsheet is interesting, even with redaction of certain information if there is "less than 5" individuals with positive reports, as indicated by an asterisk. I'm linking here to a Spotlight PA article (written by Rebecca Moss for an investigative group that draws from the Pittsburgh Post/Gazette, the Philadelphia Inquirer and PennLive/Patriot-News) that provides part of the backstory on the state's decision to provide public information, along with an embedded link to the State's spreadsheet.
On the one hand, the data is sobering when you see the high numbers of deaths reported at some facilities. On the other hand, I'm intrigued by the number of facilities, including my own county's public nursing home (one of the few such facilities remaining in Pennsylvania) that report either zero or less than 5 total cases and no deaths.
The release of this kind of transparency will be important in the long run -- and help all of us better understand risks of infection in congregate settings, including but not limited to Covid-19. Additional questions focus focus on Pennsylvania's announced new "strategy" to promote universal testing of "all residents" and "all staff" and also to include "all types" of long-term care, regardless of regulatory designation. For more on that, see a WITF-Radio Smart Talk interview pointing to "potential holes" in Pennsylvania state reporting on long-term care Covid-19 infections.
Tuesday, May 19, 2020
One way to frustrate anyone operating an assisted living, life plan community, continuing care community or other congregant living situation is to refer to their centers as "nursing homes." Many people have a fixed, negative mental image of a nursing home. And when it comes to quality of life indexes, senior living settings that offer options for meal arrangements, independent living units, daily activities, participation in off-campus events, recreational outlets (such as swimming, gyms, billiards, or golf), assistance with a range of activities of daily living, assistance with memory-based tasks such as medications, etc., typically defy the negative stereotypes. At least they do for those who actually take the time to visit.
But, sadly, the potential for wide transmission of Covid-19 does not spare the more "active" senior living models. A Philadelphia Inquirer May 18 article reports that Coronavirus Invaded These South Jersey Senior Communities, Despite Managers's Best Efforts. Some of the locations described in the article I recognize as very high-end, continuing care communities. But money alone isn't insulation. How money is used can be a factor. Some especially interesting excerpts from this article:
- A facility’s government quality rating, whether it was a for-profit business, and how much of its budget came from Medicaid, did not predict whether it had cases, said David Grabowski, a health-care policy professor at Harvard University whose study looked at whether nursing homes had any cases, not how many. He said facilities with more staff, PPE and ability to group patients with similar disease status together might have better odds of avoiding major outbreaks.
- Most of [the cases as one continuing care community in New Jersey, known as ] Lions Gate . . . have been in its nursing home, but there have been 18 in assisted living and one in independent living. Their first case was on March 30, again in a staff member. As the numbers mounted, Lions Gate started testing more widely and found cases among people without symptoms. [CEO Susan Love] does not know how the first employee got it or how it spread. The community tried to confine sick patients to one floor of the nursing home and to assign specific employees to care only for them. Some assisted-living residents were also seen by outside private aides and hospice workers. The average age of the 12 residents who died was 93, Love said. Four were on hospice care. Only five residents who tested positive went to the hospital. Most did not want to go
- [At another New Jersey CCRC], seven of the 13 residents who died were on hospice. None wanted aggressive medical care, [Executive Director] Clancy said. He takes comfort in knowing that "we abided by the wishes of every single one of them who passed away.”
The highlighted sentences in the last two paragraphs raise an important concept I haven't seen discussed often in Covid-19 themed articles. A friend of mine who is a lawyer who works outside of aging issues asked me recently why I thought the death rate "in" nursing homes or other senior care facilities was "high." I think one possibility is that such facilities have honest conversations with new residents and their families about "end of life decisions" and it is entirely possible the residents and their family members have given clear, written directions that they do not want to be transferred to hospitals in the event of a life-threatening development.
Monday, May 18, 2020
In 2011, Joshua R. Wilkins, then a graduating student at Dickinson Law, won one of the top awards for a student writing competition sponsored by the National Academy of Elder Law Attorneys (NAELA). Joshua wrote about "Consumer Directed Negotiated Risk Agreements." His introduction began:
Negotiated risk in the assisted living context is a largely misunderstood concept. Opponents and proponents of the concept often fail to agree on fundamental concepts underlying negotiated risk. Similarly, states have enacted legislation authorizing or prohibiting what is described as negotiated risk – however those states have defined the concept so differently than other states that it is difficult to understand the concept as a cohesive whole. Negotiated risk can be broadly defined as the shifting of responsibility for certain consequences between the resident and the assisted living facility. Further concepts of definition vary greatly between lawyers and industry actors, and will be discussed later.
As a polestar, the general opinions regarding negotiated risk should be summarized. Opponents of the concept believe that negotiated risk is an illegitimate and unenforceable imposition upon the rights of assisted living residents by facilities attempting to contract away liability for resident injuries. Proponents color negotiated risk as a method for residents to exercise greater control over their living conditions and tailor the services supplied and guidelines imposed by the resident’s facility.
This paper proposes an alternative approach to negotiated risk that incorporates concerns of opponents of negotiated risk, and the selling points of proponents. A consumer directed negotiated risk agreement – one prepared by the resident’s independent attorney, would assist the resident in directing their standard of assisted living, while protecting their interests. A document of this type would require new state legislation authorizing the enforceability of risk shifting, and also delineating the boundaries that such an agreement could be used for. Additional benefits to this type of negotiated risk is that concerns over resident safety and welfare during the admissions process could be addressed without completely overhauling the market-based approach that is a hallmark of assisted living. Also, because residents seeking negotiated risk agreements would have to enlist the aid of an independent attorney, they would be more likely to benefit from advice regarding many other aspects of aging that they may not have otherwise obtained – including Medicaid and estate planning, education about possible exploitation, and review of pertinent resident admissions forms and contracts.
In proposing a consumer-driven approach, Joshua recognized critics' past reasons for opposing "negotiated risk" agreements, including the serious concern that facilities could mandate such "agreement" as an automatic wavier of all appropriate standards for care. That's not true choice. Attorney Eric Carlson, long-known for his advocacy for seniors, wrote an early article, Protecting Rights or Waiving Them? Why 'Negotiated Risk' Should be Removed from Assisted Living Law, Journal of Health Care Law & Policy (2007).
The specific risk that I'm thinking of these days is the risk that attends continued interaction with family members and friends for residents of assisted living or dementia care facilities. Coronavirus is just one of the risks that comes about through such interaction, and certainly the emerging details of facilities that fail to adopt or enforce sound infection control measures are, at best, disturbing even without this particular disease. Further, just because one resident is willing to "accept" risk coming from outside interactions, that doesn't mean the entire resident community would feel the same, and yet their own exposure to the risk increases with every fellow resident's outside contact. And staff members' safety is also impacted by third-party interactions.
Perhaps negotiation of the risk agreement provisions regarding community/family interactions should be made viable only where stronger safeguards can be developed against "casual" infection sources. We have standards for "green" architecture. Are there similar standards for "clean" architecture in senior living settings (and beyond)?
Saturday, May 16, 2020
I've written about Pennsylvania's ongoing dispute between its Department of Health and some County Coroners regarding responsibilities for reporting Covid-19 related deaths and how to better assure accuracy of data. It seems possible to me that part of the controversy in Pennsylvania may reflect the fact that the County Coroners are elected officials, and may not identify with the political views of the Governor. Some Republicans vs. Democrat. In contrast, disputes between Florida's 25 medical examiner district offices and the state's Department of Health are emerging news.
I don't follow politics in Florida closely enough to know whether party-politics are involved, but there does appear to be concern from the regional officials that the State is inclined to discount Covid-19 related deaths in Florida, perhaps in an attempt to protect tourism into the state. Should a "tourist" that dies in Florida be counted as a death in Florida? From Florida Today, this opening account of one tourist death:
When a 66-year-old man was found dying on an Amtrak train passing through Okeechobee County on April 5, there was nothing to indicate that he had COVID-19. It was the local medical examiner's office that pieced it together.
The examiner discovered the man had recently arrived with a fever at New Jersey's Newark Liberty International Airport from the United Kingdom. The Centers for Disease Control stopped him from boarding a flight to Florida and sent him to a local hospital for a coronavirus test. Released before the results came back, he got on a southbound train, went into cardiac arrest while traversing the Sunshine State, and was pronounced dead at a Florida hospital.
But since at least April 20, the Florida Department of Health has blocked the Medical Examiners Commission from releasing their own detailed spreadsheet of the COVID-19 dead. On Wednesday, the state released the medical examiners' spreadsheet but redacted the narratives and cause of death entries.
Thursday, May 14, 2020
New research described in the Bulletin on Retirement and Disability published by the National Bureau of Economic Research provides new support for thinking about ways to help maximize use of benefits to pay for core living expenses. Researchers Lint Barrage (UC Santa Barbara), Ian Chin (Michigan), Eric Chin (Dartmouth),and Justine Hastings (Brown) examine how timing of receipt of Supplemental Nutrition Assistance Program (SNAP) benefits affects a household's ability and success in paying for utilities, such as electric bills. They observe:
Our results suggest that, for low income households, timing of income from government benefits and the timing of bills due may have long-run consequences. If bills are not received when income is received, households are more likely to miss payments, which may compound into disconnections which may further impact family financial and health outcomes.
These results add to a growing literature suggesting that government benefits programs and/or private industry innovate in ways to help low income households balance budgets throughout the month and avoid potential poverty traps. In the case of electricity bills, moving bill receipt to coincide with SNAP benefits receipt could improve repayment rates. This could help low income families avoid poverty traps, but also lower electricity rates for all rate payers in regulated markets, since collection and electricity service disruption are costly and must be covered by regulated electricity rates. Further research is needed to implement and measure the impact of changes in timing of bill receipt through, for example, a randomized controlled trial, and to expand the outcome measures of impact to include measures of financial well being such as credit scores.
For more, read How Bill Timing Affects Low-Income and Aged Households, NBER RDRC Working Paper 19-09) and the Bulletin summary.
Our thanks to George Washington Law Professor Naomi Cahn for this reference. I suspect that the timing of core household bills and public receipt of pandemic-driven federal stimulus payments would make for another interesting study.
A reporter recently asked me whether I'd been hearing about an uptick in elder abuse cases during the pandemic. So I was interested in the release of this research letter, Elder Abuse in the COVID-19 Era.
Consider this: "[t]he many necessary social distancing programs currently in place additionally create a growing dependency on others for the completion of daily living activities, and this dependency can be viewed as another vulnerability. The documented negative health effects of social isolation and loneliness in old age will undoubtedly intensify during this pandemic, and social isolation has been established as one of the strongest predictors of elder abuse."
Add to that the following:
With numerous “shelter-in-place” orders in effect to promote social distancing during the COVID-19 era, and increased dependency of older adults on others, the potential for elder abuse is all the more heightened, particularly since perpetrators of abuse are often close relations, and as more strangers opportunistically strive to take advantage of the fearful situation to exploit older adults for financial gain. Older adults with dementing illness are known to be of higher risk for abuse and neglect. With the shuttering of adult daycare programs, senior centers, and outpatient programs occurring concomitantly with adult children working from home, the possibility of unbuffered time together may contribute to circumstances leading to greater incidents of abuse.(citations omitted)
The authors offer suggestions to minimize the potential for instances of elder abuse in the time of COVID-19, which need to be
proactively addressed with organized, systematic, and creative efforts. Older adults within families and local communities can be contacted on a regular basis by those who are designated as advocates. Multiple communication methods can be leveraged for this purpose, ... Creativity in the development of resources to address specific vulnerabilities should be encouraged. …
Ways to address the potential threat of a trusted other range from increasing penalties for elder abuse at the societal level to the creation of an individualized safety plan that incorporates the wishes and preferences for autonomy and self-reliance of the older adult. Caregivers of older adults with dementia or other medical conditions … should be offered additional means of support and guidance. To combat rampant and increasing ageism, the perspective of older adults can be elevated by increasing representation on panels with significant decision-making power in public and private sectors during the pandemic. Those who have a substantial social media footprint can be of particular help combating ageist sentiments. Creative community-based resources that address any of these three intersecting domains of elder abuse must be rapidly developed and implemented. ….
Wednesday, May 13, 2020
Could Residents in Nursing Homes, Assisted Living Facilities and Personal Care Homes be "Canaries in the Coal Mines?"
Coronavirus infection rates at nursing homes are hot news, and getting hotter each day. Some see this as evidence of substandard care. I had been holding hope, frankly, that when I read another horrific story about a specific nursing home with xxx cases, high death rates, or a staff decimated by infections, the explanation could be as simple as negligent care.
But, what if that isn't the reason? What if facilities are employing best available practices, but the "best available practices" just are not good enough in the context of congregate care settings for this complicated disease? Frankly, state of the art models for long-term care are ones with strong behavioral programs, where quality of daily life is as important as protection against risks. Interactions, engagement, exercise, activities are what make those programs "best available."
A few days ago a friend sent me a news story about an assisted living facility where approximately 50% of the residents have recently been diagnosed with Covid-19 infections -- and where a first Covid-19 related death has occurred. I was startled, because I recognized the name of the facility.
Less than four weeks ago, the testing at that facility had shown no patients or staff members to be positive for the coronavirus. Early in March, the pro-active managers instituted "no visiting" rules for family members and other outsiders, along with other strict precautions. The facility even made arrangements for nearby housing for staff members -- at no cost to the staff -- to make it easier for them to separate themselves from cross-infections in their own homes during the quarantine. The staff continued to involve residents in daily activities, recognizing that engagement was a critical part of care, especially without family and friends visiting.
I'd been hoping that the early reports of "no virus" were testament to the fact that best practices can be employed successfully to keep fragile elders or disabled adults safe without locking them in their rooms. But, that apparently proved not to work out at this very careful facility. I've heard critics say the solution is for elders to be "at home," But "keeping your loved one at home" often won't be a practical solution, especially if the needed care is complicated, often requiring more than "just" family.
Because this facility was where each of my parents lived during their last weeks, I saw first hand just how diligent and how careful that staff is about infection.
We are all gaining a stronger understanding of how complicated care is even without this particular, terrible new disease. The disease has also run rampant through many jails, prisons and commercial food plants, all additional examples of congregate settings. But if dedicated care communities with good ratios of professional staff and very good records on quality of care are struggling to prevent Covid-19 infection, what is the real message the canaries are singing?
The amazing Bob Blancato who chaired the 1995 WHCOA wrote a thought piece recently about the conference. In 25 Years After the 1995 White House Aging Conference, Where We Are Now, Blancato writes that "[t]he top resolution approved by the delegates, who were chosen from the grassroots and involved in aging programs: 'Keeping Social Security Sound for Now and for the Future.' Two others: 'Preserving the Nature of Medicaid” and “Ensuring the Future of the Medicare Program.'”
Wait, wait, wait. I was a delegate to the 1995 WHCOA; it was quite an honor. But looking at these top resolutions, aren't they still issues today? Have we not made any progress?
Blancato interviews a few folks who were integral to the WHCOA and then looks at other issues of import during that time:
This conference also introduced new issues in aging policy.
The first sign of post-conference progress was the 2000 passage of the National Family Caregivers Program within The Older Americans Act. The second was the steady increase in funding for Alzheimer’s research, a strong priority of the conference. A third was the 2000 law to eliminate the limit on Social Security’s benefits for people 65 and older due to earning outside income.
Some of the Affordable Care Act’s improvements in Medicare, especially for expanded preventive benefits, were outgrowths of the 1995 conference. And improvements to The Older Americans Act in the four reauthorizations after 1995 can also be traced to the conference.
He also discusses other goals, yet unmet, and then opines on whether older adults are better off now than 25 years ago.
Answering that partly requires a focus on how the pandemic might radically alter parts of national aging policy in the future. The ageism and generational disputes that have erupted during the coronavirus crisis are disturbing. The devaluing of an older person’s life — shown by the tragedies occurring every day in our nursing homes and the increased reality of isolation among older adults — are troubling.
But on the brighter side, there are groups speaking out and offering alternatives to pitting generations against each other.
We’re also seeing Congress and the Trump administration starting to address some of the shortcomings in nursing homes. And we have a new appreciation for the value of certain key community-based aging programs like The Older Americans Act, which has received a large infusion of emergency funding because of what it does to help older adults maintain a good quality of life and reduce social isolation.
That said, if today’s national motto is “we are all in this together,” we must adopt those words to shape national aging policy and policies for all ages.
Tuesday, May 12, 2020
We aren't nearly out of this yet, and discussions are taking place about shield laws for businesses, especially for nursing homes. For example, a week or so ago, the Washington Post ran an article, White House and Congress clash over liability protections for businesses as firms cautiously weigh virus reopening plans. Bloomberg Law ran a story about the scope of shield laws for nursing homes, Coronavirus Liability Shields for Nursing Homes Only Go So Far (this gives the reader a good understanding of how the laws work, and what would not be covered).
The New York Times ran this story: Faced With 20,000 Dead, Care Homes Seek Shield From Lawsuits.Some facilities have sought and received protection under governors' executive orders. Others have sought legislative protection. As the Times article notes
At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.
What are the facilities arguing? This, according to the article "This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs."
Consider the other side of this coin, where advocacy folks note "At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, ... legal liability is the last safety net to keep facilities accountable.... They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation’s more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms."
The article reports that NY is one of the states with an immunity law. "New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years." There are some states with emergency orders of immunity, including "Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin." The Florida nursing home group has requested protection from Florida's governor; his decision is pending.
This is not an easy issue, nor one that will be quickly resolved (I don't think). Pay attention to this as it unfolds.
Identifying the What, Where and Who for Documenting Key Information on Cause of Death during a Pandemic
As I reported last month, the Pennsylvania Department of Health and County Coroner offices are in a bit of a struggle over their roles and responsibilities to report causes of death, including COVID-19 related causes. The dispute continues and the issues include:
- How to report the "county location" of the deceased for a COVID-19 related-death? For example, if the individual became infected while living in Adams County, Pennsylvania, but the final treatment and death was at Penn State Hershey Medical Center in Dauphin County, should the "county of death" be Adams or Dauphin County?
- How to characterize the cause of death? For example, under Pennsylvania statutory law at 16 P.S. Section 1218-B (2018), County Coroners "shall investigate the facts and circumstances concerning a death that appears to have happened within [their] county, notwithstanding where the cause of the death may have occurred" to "determine the cause and manner of death." Should a "COVID-19 related death be described as "death by natural cause," a phrase often used on death certificates or more specifically as a "death known or suspected to be due to contagious disease and constituting a public hazard," a phrase referenced in the Coroner's law?
- Where a patient's attending medical professional certifies the cause of death and reports the cause directly to the State Registrar of Vital Statistics, should the state then be required to share that information with County Coroners? Attending medical professionals have legal authority to sign death certificates and to make reports directly to the State Registrar under Pennsylvania's Vital Statistics Law of 1953 at 35 P.S. Section 450.101 et seq. (amended in 2012). Without a clear path for sharing information, how will counties have timely information that can affect other county reporting obligations?
- Does the State have authority to mandate reporting by the County Coroners using criteria recommended by the federal Centers for Disease Control and Prevention (CDC)? In April 2020, the National Vital Statistics System, which operates under the CDC, issued guidance for reporting COVID-19 related deaths, offering three sample scenarios where the "immediate cause of death" would be described as some form of acute respiratory illness, while COVID-19 would be described as an "underlying cause" that initiated the events resulting in death.
- Who is responsible for resolving any inconsistencies in County and State statistics for deaths, including COVID-19 related deaths?
On a recent WITF-Radio's Smart Talk program in central Pennsylvania, coroners from York County and Cumberland County described their concerns about disparities between state and local statistics. Charley Hall reported that Cumberland County had 45 COVID-19 related deaths, while the State at the same time was reporting 37 deaths. In York County, the lower COVID-19 number was reported at the County level, while the State recorded a higher number. For more on the practical problems, listen to the Smart Talk Podcast for 5/11/2020. The coroners raised the potential for such discrepancies to trigger erosion of public trust.
In many Pennsylvania counties, as in other states, a significant majority of COVID-19 deaths are occurring in nursing homes or other long-term care residential settings. Some of the concerns about accuracy and transparency of reporting imply intentional under-reporting or misleading reports regarding deaths in nursing homes. Pennsylvania has one of the largest populations of citizens in the nation who reside in nursing homes. Long-term living is a major, multifaceted industry in Pennsylvania.
In addition, the number of diagnosed cases, the location of diagnosed cases, and the number of COVID-19 related deaths can make a difference in whether any particular county is allowed to move away from strict social-distancing related rules.
Monday, May 11, 2020
Syracuse Law Professor Nina Kohn (currently a visiting professor at Yale Law), has an important Op-Ed in the Washington Post, in which she tackles the not so subtle ageism that accompanies response to COVID-19 -- while making it clear that the issues are much deeper than a single disease. She writes:
Of course, older adults are at heightened risk, even though covid-19 strikes younger people, too. But across America — and beyond — we are losing our elders not only because they are especially susceptible. They’re also dying because of a more entrenched epidemic: the devaluation of older lives. Ageism is evident in how we talk about victims from different generations, in the shameful conditions in many nursing homes and even — explicitly — in the formulas some states and health-care systems have developed for determining which desperately ill people get care if there’s a shortage of medical resources.
For more, read The Pandemic Exposed a Painful Truth: American Doesn't Care About Hold People. The subtitle? "We speak of the elderly as expendable, then fail to protect them."
May 11, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Statistics | Permalink | Comments (0)
With stay at home orders and LTC facilities prohibiting outside visitors, how do guardians discharge their duties? The National Guardianship Association (NGA), along with the ABA Commission on Law and Aging, and the National Center for State Courts have compiled a list of useful resources for guardians, available here, along with a list of FAQs for guardians about serving in the time of COVID-19. The FAQ list is available here. Here are the top points from this 11 page FAQ
• Access to My Clients or Loved One in Nursing Homes – While federal guidance restricts in person visits to residents in nursing homes, you have a responsibility to maintain contact and monitor well-being through remote access.
• Access to My Clients or Loved One in Residential Groups Settings and Hospitals -- State requirements may restrict in-person visits to residents in residential group settings, and federal guidance sets limits on visits to hospital patients, but you have a responsibility to maintain contact and monitor well-being through remote access.
• Access to Courts – Each state determines its own procedures during the pandemic. While many are placing a priority on keeping courts open for cases involving the protection of vulnerable individuals, hearings may be delayed or conducted remotely, and there may be changes in requirements for timelines, notices and the submission of reports.
• Protecting My Clients’ or Loved One’s Rights and Well-Being – The rights of your client or loved one have not changed, but the pandemic makes it more difficult to exercise certain rights. Take actions to ensure the person receives fair health care treatment, facilities follow safety protocols, and support the individual during this difficult time.
May 11, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, May 8, 2020
An overview of the Medicare appeals process from attorneys who have extensive experience handling Medicare appeals. The program will include:
• Medicare rules and requirements;
• Helpful resources to use while preparing a Medicare appeal;
• Appeal tips to help maximize the chance of a successful appeal; and
• Case studies to illustrate the appeals process.
Click here to register for the webinar.
Thursday, May 7, 2020
A number of national and state organizations on aging have written a letter to CMS, seeking changes in regulations to increase the care and protection of residents of SNFs.
Forty-five national and state organizations, including Consumer Voice, signed on to a letter that was sent today to the Centers for Medicare & Medicaid Services (CMS) Administrator. The letter advocates for better protections for nursing home residents and better support of residents' ability to make decisions about their health care and place of residence.
The organizations call for immediate action by CMS and make six recommendations, including:
Requiring immediate full disclosure of COVID-19 outbreaks by nursing facilities.
Setting higher standards for the necessary staff, training, and equipment to care for residents with COVID-19 and those without.
Increasing staff assistance to facilitate communication between residents and their families.
Requiring facilities and states to work collaboratively with residents and their families when making transfers designed to “cohort” residents with others who also are COVID-positive or COVID-negative.
Guaranteeing a resident’s right to return to the facility, if desired, and facilitating access to Medicaid home and community-based services.
Protecting resident access to Medicaid by requiring all federally-certified facilities to be 100% Medicaid-certified during this emergency.
The entire letter is available here.