Friday, October 9, 2020
As many of our regular readers know, I grew up in Phoenix, Arizona. One of the developments I have followed over the years is the number of homeless residents of Phoenix. I'm a cyclist in my spare time and one of my regular downtown bike routes in Phoenix takes me past an ever-growing encampment. In addition, a large park near my parents' home now serves as a daytime gathering spot for many. In the scorching heat of the summer, and the desert cold of the winter, there are more and more people without adequate shelter. The New York Times recently pointed out that in contrast to historical statistics suggesting that nationwide, "elderly" persons make up a small percentage of the homeless population, in the last few years we are seeing a surge among older adults. See Elderly and Homeless: America's Next Housing Crisis, a feature article published on September 30, 2020, that, in part, profiles the issues in Arizona.
So, it was with great interest that I read a report on a federal appellate decision, limiting the ability of municipalities to use criminal laws to penalize individuals, in an attempt to discourage or remove people who are living on the streets. The report is by one of Dickinson Law's third year law students, Jacqueline Stryker. She writes in part:
"The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance. In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the 9th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter. The Court concluded that it does. A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. "
Ms. Stryker observes in her conclusion, "Whether the decision of the Ninth Circuit in Martin will gain traction a local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen."
For more of Ms. Stryker's timely, concise case analysis, see: Municipal Efforts to Combat Homelessness.
Monday, September 21, 2020
A recent article in The Guardian highlighted a housing experiment in Sweden that combats loneliness, 'It's like family': the Swedish housing experiment designed to cure loneliness. (If you don't have an account with The Guardian, you need to register, but there is no fee).
The project, known as Sällbo, is
[A] radical experiment in multigenerational living in Helsingborg, a small port city in southern Sweden. Its name is a portmanteau of the Swedish words for companionship (sällskap) and living (bo), and neatly encapsulates the project’s goals – to combat loneliness and promote social cohesion by giving residents incentives, and the spaces, for productive interaction.
Sällbo, which opened last November, consists of 51 apartments spread over four floors of a refurbished retirement home. More than half of the 72 residents are over 70s, like Ahlsten and Bacharach; the rest are aged 18-25. All were selected after an extensive interview process to ensure a mix of personalities, backgrounds, religions, and values, and all had to sign a contract promising to spend at least two hours a week socialising with their neighbours.
Not only was this project designed to combat isolation amongst Sweden's elders, it also was designed to respond to "the 2015 refugee crisis [which] meant organisations like Helsingsborgshem were under pressure to house growing numbers of people who were struggling to integrate with – and win acceptance from – Swedish society. So a plan was hatched to mix the two, with younger Swedish people acting “as a bridge." So far the reports of the project's success have been positive despite the hurdles of starting a new endeavor in these times (think COVID). Information about the services, costs, etc. are available here.
Thanks to my colleague and dear friend, Professor Bauer, for bringing this article to me.
Sunday, August 23, 2020
Inevitably ... the virus has found its most ideal conditions in the warehouses storing America’s elderly population. No one knows the current death toll. As of early July, CMS put the number at 33,509, but the count covered only federally regulated nursing homes, not assisted-living communities. The homes, moreover, were not required to report deaths that occurred before May 8, although the agency said it was confident that “the vast majority” did so. One in five nursing homes didn’t bother to report their numbers at all. A New York Times study in late June put the number of deaths in U.S. nursing homes at a staggering 55,000, but even this figure did not necessarily include all of those who became infected in a home but died in a hospital, as was the case for Sharon Mitchell. In some states, the vast majority of COVID-19 deaths were in homes: 64 percent in Massachusetts, 68 percent in Pennsylvania, 77 percent in Minnesota. In New Jersey, one in every ten people housed in nursing homes or assisted-living centers died. This was a helpless population, helpless because so often confined in a state of neglect and squalor. But despite or perhaps because of their conditions, they were worth a lot of money. In effect, they were being harvested for profit.
The article looks at the financial model of long term care facilities in the U.S. It offers a comprehensive history of the development of LTC facilities in the U.S., culminating with a discussion of the ownership of LTC facilities by private equity firms. The article covers the impact of the pandemic and the efforts by the industry to get shield laws to provide them immunity.
As noted by the article, it's not only U.S. facilities that have faced these deaths from the pandemic. It notes one company that made changes early in the pandemic, which resulted in less cases, at least in some facilities. If we are to change the way we provide ltc in this country, in my opinion, this article is important. I'm assigning it to my students.
Thursday, July 9, 2020
During an AALS-sponsored online "hang-out" session this week, the featured host, Syracuse Law Professor Nina Kohn, helped faculty think about better ways to conduct online courses, including Elder Law. We also talked about our research projects for the summer. Nina commented that she has never before had "so much to write about and so little time to do so," which I suspect has something to do with her wonderfully active children! But, I also think that most of us in the AALS Section on Law and Aging are feeling the same way. It is as if our client base -- older persons -- are at the epicenter of so much tragedy. Sadly, the COVID-19 illness has hugely impacted older persons, as documented frequently on this Blog.
And now the news that in Japan, seasonal rains that have become steadily worse over the years for reasons associated with climate change, have triggered extraordinary flooding, resulting in the drowning deaths of many elders in their nursing homes or while trying to shelter at home. From the New York Times article, Japan's Deadly Combination: Climate Change and an Aging Society:yAlthough the Japanese gird every June and July for the rainy season — known as tsuyu — this year the rainfall has set records in Kyushu, with more rain expected to blanket central Japan by the end of this week.
Older residents accustomed to year after year of summer rains may believe they know how to ride out the downpours at home. Yet they may not understand the growing severity of the rains or the increased dangers of flooding.
“Under the emerging impact of global warming, there is an increasing risk or potential that rainfall amounts could be at a level that we haven’t experienced in the past,” Professor Nakamura said. “So I think that citizens must realize that their previous experience may no longer work. We have to act even earlier or faster than what we have experienced in the past.”
Evacuation itself can pose a risk to the elderly. Conditions in evacuation centers inevitably fall short of those in nursing homes designed for old-age care. For the frailest patients, the moves can cause injury or destabilize long-term care plans....
In the case of the Senjuen nursing home, Aki Goto, its director, told The Kumamoto Nichinichi Shimbun, a local newspaper, that she had been more concerned about mudslides than flooding. When the waters came, she added, the caregivers could not move quickly enough to move all the residents upstairs.
Six of the workers were on call the night of the floods last weekend, the newspaper reported. That still left each caregiver in charge of more than 10 aging residents, some of whom were unable to walk without help. Even with the aid of local volunteers, they could not bring everyone to safety upstairs as the floodwaters rapidly rose and deluged the ground floor.
Whether it is hurricanes in the Carribean and US, wildfires in western US states, extraordinary storms or unique diseases around the world, our elderly are often seeming to take the heaviest blows. Isolated and with inadequate protective equipment or assistance, the pattern of "unexpected" deaths continue. Unexpected?
Thursday, June 18, 2020
On Monday, June 22, 2020, I'm joining the 3rd Annual Memorial Elder Abuse Sympsium hosted by Legal Aid Services of Oklahoma and being delivered as a webinar over the course of several sessions. On Monday, the first set of speakers includes deeply experienced professionals in banking and securities, both potential avenues for elder fraud, as well as Judge Scott Roland of the Oklahoma Court of Criminal Appeals. I follow them with the topic "Extreme Home Takeovers - Dealing with Concerned Relatives" -- the clever title supplied by our hosts!
I'll be offering comparative statutory and common law approaches for recovering a house. including my own experiences while supervising Dickinson Law's Elder Protection Clinic. The need is usually triggered by a transaction often tied to the worries of the older person, hoping or believeing that a family member, friend or new "befriender" would be more likely to save them from the dreaded nursing home if they give the hoped-for-caregiver "the house." I'll be using cases from Ireland, Pennsylvania, Oklahoma (of course) and beyond for strategies, and discussing everything from filial support laws, to improvident tranaction laws, to the common law concept of failure of consideration in "support deeds."
Thursday, June 11, 2020
The seminal 1987 Nursing Home Reform Act requires all nursing facilities to care for their residents in a manner that that "will promote ,maintenance or enhancement of the quality of life of each resident." 12 USCA Section 1396r(b)(1)(A). The same law, at Section 1396r(e)(3), addresses "access and visitation rights:"
A nursing facility must - ...(B) permit immediate access to a resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;(C) permit immediate access to a resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident;
(D) permit reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time ....
It wasn't candlelight and soft music that made the 40th anniversary of Luann and Jeff Thibodeau so memorable. It was gazing at each other through the window of Jeff's nursing home in Texas and eating carryout from the Olive Garden. Just the two of them. And a nursing assistant.
"She fed him, and I ate mine, and that was it," Luann Thibodeau says. "So that was our 40th wedding anniversary."
The Thibodeaus have not been in the same room since mid-March. That's when visitors were banned from nursing homes to slow the spread of the coronavirus. But family members say that talking via FaceTime and holding up signs at windows are no substitute for the hands-on care and emotional support their visits provide.
Family members often are an integral part of the care residents in nursing homes receive. They make sure meals are being eaten, clothes are being changed. They also offer invaluable emotional support. . . .
Luann Thibodeau has seen that decline in her husband. She used to bring dinner for him every night except Tuesdays when she goes to Bible Study. She says that as his multiple sclerosis has worsened, he's become increasingly disinterested in food. [She explains]. "I bully him into finishing a meal. And I'll say to him, 'Jeff, you know, this is what an adult man eats. So you need to eat this.' "
A staff member can't do what she does. Nursing home residents have rights. So if Jeff Thibodeau tells a nursing assistant that he's done eating after three bites, she has to abide by his wishes.
Without his wife's push, the results of her absence is striking.
For more, listen to the NPR podcast or read the parallel written narrative in "Banned From Nursing Homes, Families See Shocking Decline In Their Loved Ones."
The federal Nursing Home Reform Act's Bill of Rights has never been an easily enforceable mandate, and particularly in a global crisis the needs of the many can override the rights of individuals. But there does need to be a long-range plan on how better to facilitate visitation, recognizing it as an important part of any person's quality of life.
June 11, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (2)
Monday, June 8, 2020
Oklahoma Legal Aid Services Update: 3rd Annual Memorial Elder Abuse Symposium Goes Virtual, Starting June 15
This year, the Sonya L. Patterson Elder Abuse Symposium hosted annually by Legal Aid Services of Oklahoma, will take place over the course of several weeks, in bite-size programming, rather than in a single, all-day conference format. In light of the online setting, the organizers are also able to open up registration and attendance to interested people outside of Oklahoma; however, there are limits on the number who can attend each session, so I recommend registering early. In past years, the symposium has drawn an audience of attorneys, law enforcement and social workers, with CLE credits available.
I'm very pleased for the opportunity to be a speaker this year. In addition to attorneys and judges, the speakers include health care professionals and bankers. The program honors the life and advocacy of a young Oklahoma public interest attorney, Sonya L. Patterson, who passed away far too soon in 2015, as the result of an accident at the age of just 30.
Here's the line up for the midday Symposium Webinar Series , with all sessions taking place on Central Daylight Savings Time:
Session 1: Monday, June 15th (11:00 am to 1:45 pm)
- The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
- Attorney Responsibility to Client’s Ward or Principal- Rick Goralewicz, Staff Attorney, Legal Aid Services of Oklahoma
Session 2: Monday, June 22nd (11:00 am to 1:15 pm)
- Financial Exploitation of the Elderly- Justice Scott Roland, Oklahoma Court of Criminal Appeals with Elaine Dodd, Executive Vice President/ Fraud Division at Oklahoma Banker's Association and Jennifer Shaw, Oklahoma Securities Commission
- Extreme Home Takeover: Dealing with the “Concerned Relative”- Katherine C. Pearson, Professor of Law at Dickinson Law, Pennsylvania State University, Carlisle Pennsylvania
Session 3: Wednesday, June 24th (11:00 am to 1:15 pm)
- Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
- Experts: Identifying and Utilizing in Elder Abuse Litigation- Kara Vincent, Attorney, Barber and Bartz
Session 4: Monday, June 29th (11:00 am to 1:15 pm)
- Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
- Abuse in Institutional Settings- William Whited, State Long Term Care Ombudsman and Nicole Snapp-Holloway, Attorney at Maples, Nix and Diesselhorst
Session 5: Wednesday, July 1st (11:00 am to 1:15 pm)
- Incompetency, Incapacity and Vulnerability- Mark Holmes, Attorney at Holmes, Holmes and Niesent, PLLC, Travis Smith, Attorney at Holmes, Holmes and Niesent, PLLC and Cathy Wood, Adult Protective Services
- Isolation and Loneliness- Laurel Dinkel, LCSW, Norman, Oklahoma
Click HERE for access to registration information for individual sessions or the entire series. My thanks to Oklahoma Legal Aid Staff Attorney Rick Goralewicz for the invitation.
June 8, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, State Cases, State Statutes/Regulations, Statistics, Webinars | Permalink | Comments (0)
Saturday, June 6, 2020
From a sad, powerful story about one of many deaths at Isabella Geriatric Center, carried in the New York Times:
A little after 1 in the afternoon, Aida Pabey got the call from the nursing home: Her mother was not going to make it. It was April 6, nearly four weeks after the state had barred all visitors to nursing homes, and Aida and her sister, Haydee, had been struggling to get even the most basic information about their mother. Was she eating? Had the coronavirus reached her part of the home?
Now this dire call. Just the day before, the sisters had been assured by an aide that their mother was “fine.”
They were both detectives in the New York Police Department, 20-year veterans. They were used to getting information, even from people determined to withhold it. But the nursing home had been a black box.
They raced to the home. Haydee got there first and managed to get upstairs. Aida, arriving second, identified herself as a crime scene investigator and brought safety gear. “I had my face shield, my bootees, my mask, my gloves,” she said. The security guard refused to let her in. “No. It was, ‘No way.’”
For more read, When Their Mother Died at a Nursing Home, 2 Detectives Wanted Answer. As one of our Blog's readers has commented recently, "we need to go a step deeper to the ROOT cause of these serious breaches of safe practices in care facilities."
June 6, 2020 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, June 5, 2020
Must Any Public "Right to Know" the Covid-19 Infection Status of LTC Facilities Depend on Legislation?
Under the best of circumstances, it is difficult to make a decision about whether to place a fragile loved one in a care community. With COVID-19, such a decision can be even more difficult, as some states states (and some facilities) have resisted making public the names of long-term care facilities where residents or staff have been diagnosed with COVID-19.
In Arizona, a "right to inspect public records" suit was filed on May 5, 2020 by news organizations, seeking to review "public records" that show the number of COVID-19 positive residents at nursing care institutions, as well as the number of transfers made between such facilities and Arizona hospitals. They were not requesting the identity of the residents; however, disclosing records containing the numbers would disclose the names of the facilities. That state's Governor has reportedly taken the position that not disclosing the COVID-19 infection history of facilities by name is "in the best interest of public health."
On May 29, Maricopa County Superior Court Judge Christopher Coury ruled against the news organizations. In the 23-page opinion in CV 2020-005385, Judge Coury concluded with these interesting paragraphs:
72. Both Plaintiffs and Defendants have asserted legitimate positions in this action, particularly given that the underlying issues are important and weighty in the lives of Arizonans. It is beyond dispute that Arizonans who have parents, aunts, uncles, friends, neighbors, and loved ones living, or who may in the future be placed, in a Facility to care for them want, and justifiably deserve, to know how that Facility and its residents have fared during the Covid-19 public health emergency. As a son, nephew, friend, and neighbor, this judicial officer understands, respects, and empathizes with the need for Arizonans to have access to the information contained in the Records. Fortunately, this need of family and caregivers has been mitigated, if not eliminated, by EXECUTIVE ORDER 2020-35, which requires Facilities to provide Covid-19 information to residents, transferees, and applicants – and their guardians and next of kin – on a prompt basis.
73. It is not the position of the Judicial Branch to enact legislation or to create policy – that responsibility rests squarely with the other branches of government. The Legislature could consider the policy implications on all sides of this issue, and if desired, enact clarifying legislation and expressly protect records, or direct that records be released. If any frustration exists, it is that this has not happened. The Act – the legislation authorizing the actions at issue – lacks clarity. Rather than using model legislation with clearly defined terms, and rather than actually defining the terms used, the Legislature in 2002 created Arizona-specific legislation, apparently from whole cloth. Even though the subject matter of the Act relates to emergencies – instances when clear statutes are needed to permit critical, decisive and time-sensitive actions – the Act left critical terms undefined. Eighteen regular legislative sessions have passed, and the Act has not been amended or clarified. Perhaps this is the fortuitous result of not having to deal with a widespread health emergency during the intervening years. Nonetheless, if this decision illustrates nothing else, it highlights the need for the Legislature to revisit the Act and make it more workable for all concerned. In its present form, the ambiguous Act does a disservice to the media, to government leaders, to the courts, and to all Arizonans.
74. Arizona has been profoundly impacted by Covid-19. Lives have been lost. Women and men, old and young, have been sickened. The economy has been set back. Livelihoods of people have been compromised. Weddings and religious ceremonies have been delayed. Births and funerals have been isolated. Students have missed classes and graduations. Temptation exists to simply adopt jurisprudence that because Covid-19 has created such harm in our state and because Arizonans need information to battle Covid-19, sufficient justification exists to “look the other way” and require release of the Records. This judicial officer, however, will not and cannot do this. Indeed, were this judicial officer to ignore the law, Arizona’s Constitution – and its provisions of limited government and separation of powers – would be added to the list of Covid-19’s victims. The Court will neither countenance nor assist in this. Although difficult in the face of this devilish virus, fidelity to the Constitution and laws of the State of Arizona must prevail.
Therefore, Judge Coury entered judgment against the News Organizations as plaintiffs with respect to their request to produce records containing numerical information on COVID-19 infections at specific facilities, ruling that this was medical information that was "confidential and protected as a matter of law."
The court found that a triable issue exists relating to other issues in the case, "specifically, Defendant's failure to produce documents relating to information regarding the availability of PPE."
Note: I have not yet found a public website containing Judge Coury's decision, although it appears the order is not a restricted document. If any of our readers come across such a site, feel free to let me know and I can amend this post to link to the full opinion.
My thanks to Jon Dessaules, a former Dickinson Law student, now a long-established Phoenix attorney, for assistance in tracking down information on this case.
Wednesday, June 3, 2020
National Continuing Care Residents Association Joins Other Senior Living Advocates in Opposing COVID-19 Immunity
On June 1, 2020, the National Continuing Care Residents Association (NaCCRA) released its public statement detailing the organization's opposition to COVID-19 immunity or waivers of liability for nursing homes, adding to the growing chorus of opposition. They explain:
CCRCs mainly provide three levels of care under one roof or on the same campus, normally comprised of independent living, assisted living, and skilled nursing care -- the latter two considered licensed long-term care facilities. Our members can reside at various times in any of the three levels of care. Fore example, one spouse can live independently while the other can live in assisted living or skilled nursing. There are numerous variations of these living arrangements depending on the level of care required.
NaCCRA and its members are very sympathetic to the CCRC managers and front-line care/service workers as they labor during the coronavirus pandemic with its many challenges. However, residents living and dying, many times alone, in nursing homes or assisted living apartments, should not be deprived of their legal rights or protections even in these most extraordinary times.
NaCCRA and its member residents living in continuing care settings are alarmed at the push to grant liability immunity to providers and operators of long-term care facilities in the face of the COVID019 epidemic. Many states have acquiesced to provider association lobbyists at the expense of residents' legal protections. NaCCRA believes that long term care providers must not be given a pass on negligence in any form simply due to a pandemic, which makes seniors in such congregate settings even more vulnerable.
Therefore, we strongly oppose the liability waivers for COVID-19 legislated by some states. WE urge that these be repealed and advocate on immediate moratorium on any future waivers for providers/operators of CCRCs and long-term care facilities. It is our position that existing laws and negligence standards are more than adequate to protect long term care facilities that are sued if they have followed the proper standards of care and protocols.
My thanks to Jim Haynes, the current president of NaCCRA, for keeping us advised on their position.
June 3, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Retirement, Science, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)
Tuesday, June 2, 2020
For more than ten years it is probably fair to say that the most ubiquitous appellate "elder law" cases are those involving attempts by nursing homes to compel arbitration, rather than court-based litigation, usually raised as a defense to personal injury suits brought by residents or family members of residents. Admission contracts routinely include mandatory arbitration clauses. Arbitration is often promoted by nursing homes to prospective customers as offering efficient, cost-effective resolution for any disputes; however, seasoned attorneys also know that limiting disputes to arbitration is a means by which care-providers avoid trials by jury, publicly reported trials, and most court-based rules on procedure, rights to discovery and admissibility of evidence.
This month, a California appellate court (Second District, Division 6) ruled that residents of continuing care communities are protected because of California laws interpreted as prohibiting mandatory arbitration in "rental agreements." From the June 1, 2020 opinion in Harris v. University Village Thousand Oaks, CCRC, LLC:
Civil Code section 1953, subdivision (a), states, “Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] ... [¶] (4) [Their] procedural rights in litigation in any action involving [their] rights and obligations as a tenant.”
... The plain language of Civil Code sections 1940 and 1953 applies to the continuing care contracts here because the fees paid by appellants include payment for the right to live in a residence. Appellants are thus “persons who hire dwelling units.” (Civ. Code, § 1940, subd. (a).) Thus, the protections for “boarders” and “lodgers” (Civ. Code, § 1940, subd. (a)) apply to the “board, or lodging” portions of continuing care contracts (Health & Saf. Code, § 1771, subd. (m)(1)). Because the allegations in the complaint here include claimed violations of “rights and obligations as a tenant” (Civ. Code, § 1953, subd. (a)(4)), the arbitration agreements are void.
The court discussed the reasons legislatures enacted statutory laws to "protect the rights of tenants." It continued:
Elders entering continuing care contracts are entitled to the same protection as mobile home owners. Both groups face significant economic barriers to relocating. The Legislature recognizes that “elderly residents often ... expend a significant portion of their savings in order to purchase care in a continuing care retirement community,” and that there is a need “to protect the rights of the elderly.” (Health & Saf. Code, §§ 1770, subd. (b), 1776.)
The court acknowledged that CCRC residents also have some express statutory protections under state laws regulating CCRCs, but concluded that the lack of any bar on arbitration in that statutory scheme does not preclude protection for residents under landlord-tenant law.
Moreover, the continuing care contract statutes “shall be liberally construed for the protection of persons attempting to obtain or receiving continuing care.” (Health & Saf. Code, § 1775, subd. (e). To deny residents of a continuing care retirement community the protection given others who contract for lodging would be inconsistent with this express policy. The legislative purposes of both the landlord-tenant laws and the continuing care contract laws are best served by applying the arbitration prohibition to the housing component of continuing care contracts.
The full opinion is currently available on Westlaw at 2020 WL 2831923.
Friday, May 29, 2020
On occasion, I have created what I call a "Filial Friday" post, where I write about attempts to use "filial support laws" to compel family members, usually adult children, to pay for the costs of nursing home care. These cases sometimes arise in the U.S., or foreign countries, or in "reverse" circumstances, where the elderly parent is the target of a suit for long-term care of a disabled child. Pennsylvania has played an important role in this episodic history, in part because of language added to Pennsylvania's colonial era statute that was interpreted by the courts as giving standing to nursing homes to bring direct suits against family members.
But, during the last few weeks of Covid-19-related lockdowns, I've noticed a sharp contrast with the troublesome filial support law cases. I've seen (and happily become part of) what I would call a "neighborhood movement." For example, one of my neighbors, Marci, who, like many of us, is currently working full time from home, has more or less adopted one of our more elderly neighbors. The elderly neighbor doesn't have children of her own and she's had some recent health issues. Marci checks up on her regularly, does grocery shopping for her, prepares and delivers occasional meals, takes the cat to the vet, and more. No one asked her to do this!
I've seen other examples, including informal "teams" of neighbors organizing to help older individuals who don't have local family members to provide help. Its great to see -- and I know, I also feel more connected to my own distant family when I can help someone locally. A "two-fer," as they say.
So, here's wishing you a very Happy Filial Friday -- of a different sort.
Wednesday, May 27, 2020
Looking at Reasons for Opposition to Federal Immunity for Long-Term Care Facilities Related to Covid-19
A long-time friend and advocate for quality of life as we age contacted me today to discuss what to think about any attempts at federal legislation to immunize long-term care facilities from liability related to Covid-19. I admitted I hadn't had time to think about this yet! So, I'm starting my thinking now. My blogging colleague, Becky Morgan, said earlier this month that even at the state level, immunity is not an "easy" issue.
Historically, when Congress passed the Nursing Home Reform Act of 1987, it was an important attempt to create minimum national standards for quality of care, in light of a long nightmare of horror stories about inadequate care across the nation. But, even as it established standards (such as a prohibition on "restraints" without documented medical necessity), it did not establish a "right to sue" by individuals claiming failure to comply with the standards. That was probably a compromise worked out with the various lobbying groups, but the consequence of that was states were left to decide on their own about whether and to what extent rights exist for a patient to sue for negligent care. So, one could say that it would be "unprecedented" for Congress to actively shield the long-term care industry from quality of care standards, stepping on the toes of the states. (Plus, at first blush, I don't see how Congress has any authority to craft immunity for facilities that are not subject to Medicare/Medicaid funding and oversight).
On the other hand, depending on how broad or narrow any such legislation was drafted, limited immunity might be appropriate on a narrow ground. States have been relying on existing federal Medicare/Medicaid law that effectively prevents nursing homes from turning away Covid-19 infected residents as long as they have open beds and the patient qualifies for Medicaid/Medicare. So those nursing homes have been, in effect, forced to take infected patients, which greatly increases the potential for cross infection, even with "good" infectious disease procedures in place. But isn't this a "problem" that should be fixed, rather than pasted over?
Advocacy groups on behalf of older persons, disabled persons, and consumers and workers are making it clear they oppose broad federal immunity. See the May 11, 2020 letter to Senate Chairman Graham and Ranking Member Feinstein, signed by California Advocates for Nursing Home Reform, The Center for At Risk Elders (CARE), Center for Medicare Advocacy, Community Legal Services in Philadelphia, Justice in Aging, Long-Term Care Community Coalition, National Association of Local Long Term Care Ombudsmen, National Academy of Elder Law Attorneys, National Association of Social Workers, National Association of State Long Term Care Ombudsman Programs, the National Disability Rights Network, Services Employees International Union, as well as individual law firms.
See also the letter of May 11, 2020 sent by AARP.
Addendum: See also 140 Groups Now Oppose Immunity; Nursing Homes Want Immunity and New York Regrets Giving It to Them, posted May 14, 2020 on Public Citizen.
May 27, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)
In senior living, one of the more interesting phenomena are so-called "naturally occurring retirement communities," or NORCs. This label, or a related "village" label, is often used to describe residential settings where a large proportion of the population is now over the age of 60, not by design or plan. The citizenry has continued to live there as they age, and has attracted complementary local service industries, such as wellness programs, home health visitors, day care options, and adapted transportation modes. Some of the early, well documented and often studied NORCc include Beacon Hill in Boston, and Upper Park Heights in northwestern Baltimore. Residents in the area often take great pride in the trend, emphasizing it as a positive way to age in place, drawing upon appropriates supports that help to maintain individual dignity.
But what happens when a new, highly infectious disease also finds its way into a NORC? As is too often true in law, the answer is probably, "It depends."
One such place is Co-op City in the Bronx. According to some reports it is the largest residential development in the U.S., with 43,000 residents in 36 towers and seven townhouse clusters, plus larges grass fields, walking paths, a community garden, nearby schools, shopping, and its own Little League baseball field. Development of the planned, cooperative housing projects that comprise Co-Op City occurred from approximately 1966 to 1976. The 2000 census showed that 60.5% of the population of Co-op City was African American, about 27.7% were Hispanic or Latino and about 8.6% were white. A corporation is in charge of management.
Co-Op City has also become an unplanned NORC, with one of the largest populations of elderly in the country. As early as 2007, public sources estimated that over 8,300 of the residents were over the age of 60. See also 2016 statistics that indicate that 21% of the population in District 10 (where Co-Op City is located) is over age 65, in comparison to New York City's overall age 65+ population of 16%. Co-Op City is recognized as a NORC-JASA community for age-related programming and services.
In 2020, the Bronx generally and Co-Op City especially appear to have been hard hit by the corona virus. Public media sources, reporting here and here, use statistics released by city health officials, to reveal "that the virus has killed at least 155 people in the zip code" that covers Co-Op City. "That's roughly 1 in every 282 residents." (Hmm. I'm not sure about the numerators and denominators used in these articles).
It may be tempting for some to dismiss negative statistics in any single statistical areas as due to a single factor, such as vulnerability tied to advanced age. That can be dangerous as discussed in the article by Barbara Pfeffer Billauer, linked in my May 26 post.
Instead, take the time to consider other factors that may point to the deep risk of infectious disease in certain congregate settings and that appear to exist in Co-Op City:
- a geographic community with physical constraints that mean residents depend on public transit -- at a higher risk -- for much of their connection to the working world, including non-family caregivers and service providers;
- confined locations to do necessary shopping for food and pharmacy supplies;
- comparatively tightly packed living or working spaces;
- and, significantly, common ingress/egress for buildings via limited numbers of hallways and tall towers of elevators for all such comings and goings.
In this instance, a NORC, usually considered a better space for aging in place, arguably may have become a large-scale version of a nursing home, with abundant opportunities for building-to-building, apartment-to-apartment transmission of infections. At a minimum, perhaps this is another reason to think more aggressively about public health strategies and health policy priorities in light of the lessons we are learning from the Covid-19 pandemic.
Special thanks to my Dickinson Law colleague, Professor Sarah Williams, for alerting me to what is happening with coronavirus in Co-Op City.
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)
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.
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.
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)?
Friday, May 15, 2020
Another interesting conversation with a long-term care administrator this week was about "what kind of tests" are important in the Covid-19 context, especially for older adults in a congregate setting. A first question is whether every member of the staff and the residents should be tested regardless of the presence or absence of any symptoms. A Washington Post editorial on May 14, 2020 called for "extreme measures" Of course, the utility of such threshold testing mandates depends upon the availability of the means to test and how quickly the results of the tests will be processed. It is unlikely that the nation's number of residential care facilities will have the White House's "instant" testing equipment, right?
But when Covid-19 is present in any congregate care setting, the administrator explained a second test may be even more important. The test is for oxygen levels, taken with a monitoring device, sometimes referred to as an oximeter and often attached to a finger of the person in question. She explained to me that with Covid-19, the impairment of the lungs can occur with dramatic quickness and not necessarily with any complaints from the patient about shortness of breath. The director explained that donations of oxygen concentrators to her community meant they are able to respond to lowered oxygen levels within seconds -- rather than within life threatening minutes or hours -- to provide enhanced oxygen for the resident. Further, many at-risk people resident not in nursing homes, but in the many other variations of congregate senior care.
Have you tried to convince a person with a cognitive impairment or an anxiety disorder to wear a mask or agree to keep that oximeter attached to their hand? Will "extreme measures" include funding to support needed increases in care-staff ratios?