Tuesday, July 21, 2020
Charlie Sabatino, the rock star of elder law and the Director of the ABA Commission on Law & Aging recently wrote an opinion piece for Next Avenue on this important topic. OPINION: It’s Time to Defund Nursing Homes: How the traditional nursing home model can be replaced. Sabatino writes that:
[T]he COVID-19 pandemic ravaging nursing home residents underscores a deep-seated ageism inherent in our institutional model of nursing home care. I believe it is time to defund the institutional model and replace it with a radically different model.
Today’s typical nursing home has never come close to meeting the public’s desire for humane and dignified long-term care. Warehousing large numbers of frail elders in hospital-like buildings with residents in double or triple rooms along with staff turnover as high as 100% unavoidably creates a high risk for resident safety and compromises quality of care.
We've all read the stories about the horrors occurring in the nursing homes as the pandemic rolls across the country (for patients and caregivers too). A number of calls for change have been made, but as Sabatino aptly observed, "
[M]ultiple recommendations for change have gained attention. They include ensuring adequate personal protective equipment in nursing homes; disaster plans that facilitate quarantining; more and better trained staff and heightened monitoring and oversight of care.
But let’s be clear: These measures do little more than rearrange the deck chairs in a failing system.
The COVID-19 pandemic is a 9/11 moment for nursing home care and a test of our ability to reimagine nursing home care that puts the “home” into nursing homes.
Sabatino then turns to specifics regarding change and suggests the key to change is to tie it to Medicare and Medicaid funding.
As the largest payor for nursing home care, Medicare and Medicaid hold the key. Now is the time to change facility requirements to gradually limit participation in the program only to facilities that provide the following:
Small home-like facilities
Single rooms and bathrooms
A flattened, more flexible staff hierarchy with cross-trained staff
A culture focused first on residents’ goals, interests and preferences.
Sabatino concludes "[a]s long as the nursing home industry can rely on the flow of federal money for the current model of care, it has no financial incentive to change, not even after the coronavirus catastrophe. ... Change that flow, and a major cultural change in long-term care will follow."
Stay safe and healthy everyone.
Thursday, July 2, 2020
More good news from CMS-the members of the Independent Coronavirus Commission on Safety and Quality in Nursing Homes have been announced. The 25 experts
The commission members are:
Roya Agahi, RN, MS HCM, WCC; Chief Nursing Officer, formerly of NYC Health + Hospitals, soon to be of CareRite, New York
Lisa M. Brown, PhD, ABPP; Professor of Psychology, Palo Alto University, California
Mark Burket, CEO, Platte Health Center Avera, South Dakota
Eric M. Carlson, JD; Directing Attorney, Justice in Aging, California
Michelle Dionne-Vahalik, DNP, RN; Associate Commissioner, State Health and Human Services Commission, Texas
Debra Fournier, MSB, BSN, ANCC RN-BC, LNHA, CHD, CPHQ; COO, Veterans’ Homes, Maine
Terry T. Fulmer, PhD, RN, FAAN; President, The John A. Hartford Foundation, New York
Candace S. Goehring, MN, RN; Director, State Department of Social and Health Services, Aging and Long-Term Support Administration, Washington
David C. Grabowski, PhD; Professor of Healthcare Policy, Harvard University, Massachusetts
Camille Rochelle Jordan, RN, BSN, MSN, APRN, FNP-C, CDP; Senior Vice President of Clinical Operations & Innovations, Signature Healthcare, Kentucky
Jessica Kalender-Rich, MD, CMD, AGSF, FAAHPM, FACP; Medical Director, Post-Acute Care, University of Kansas Health System, Kansas
Marshall Barry Kapp, JD, MPH; Professor Emeritus of Law, Florida State University, Florida
Morgan Jane Katz, MD, MHS; Assistant Professor of Medicine, Johns Hopkins University, Maryland
Beverley L. Laubert, MA; State Long-Term Care Ombudsman, State Department of Aging, Ohio
Rosie D. Lyles, MD, MHA, MSc, FACA; Director of Clinical Affairs, Medline Industries, Illinois
Jeannee Parker Martin, MPH, BSN; President and CEO, LeadingAge California
G. Adam Mayle, CHFM, CHC, CHE; Administrative Director of Facilities, Memorial Healthcare System, Florida
David A. Nace, MD, MPH, CMD; President, AMDA – The Society for Post-Acute and Long-Term Care Medicine, Pennsylvania
Lori Porter, LNHA, CNA; CEO, National Association of Health Care Assistants, Missouri
Neil Pruitt, Jr., MBA, MHA, LNHA; Chairman and CEO, PruittHealth, Inc., Georgia
Penelope Ann Shaw, PhD; Nursing Home Resident and Advocate, Braintree Manor Healthcare, Massachusetts
Lori O. Smetanka, JD; Executive Director, National Consumer Voice for Quality Long-Term Care, Maryland
Janet Snipes, LNHA; Executive Director, Holly Heights Nursing Home, Colorado
Patricia W. Stone, PhD, MPH, FAAN, RN, CIC; Professor of Health Policy in Nursing, Columbia University, New York
Dallas Taylor, BSN, RN; Director of Nursing, Eliza Bryant Village, Ohio
The Commission will conduct a comprehensive assessment of the overall response to the COVID-19 pandemic in nursing homes. Based on its assessment, the Commission will make recommendations on actions and best practices for immediate and future actions. Three key areas of focus for the Commission include:
Ensuring nursing home residents are protected from COVID-19 and improving the responsiveness of care delivery to maximize the quality of life for residents;
Strengthening efforts to enable rapid and effective identification and mitigation of COVID-19 transmission (and other infectious disease) in nursing homes; and
Enhancing strategies to improve compliance with infection control policies in response to COVID-19.
Crossing my fingers....
Wednesday, July 1, 2020
I've recently returned from a week in Arizona with family. I managed to arrive in Phoenix just in time for a surge in COVID-19 cases, traffic headaches connected to President Trump's campaign visits, a couple of new wildfires, and a few more degrees up the summer temperature gauge. Probably the most newsworthy part of the trip was the announcement by Arizona authorities that the state was activating a COVID-19 crisis plan that involves triage -- or "rationing" as some people interpreting the plan are calling it. One component of the Arizona plan involves "protocols for scarce resource allocation." An Arizona public statement describing the protocols attempts to reassure the public (emphasis provided with blue color):
If resources are sufficient, all patients who can potentially benefit from therapies will be offered therapies. If resources are insufficient, all patients will be individually assessed. No one will be categorically denied care based on stereotypes, assumptions about any person’s quality of life, or judgement about a person’s “worth” based on the presence or absence of disabilities.
All patients, regardless of resource availability, will be treated with respect, care, and compassion. Triage decisions will be made without regard to basis of race, ethnicity, color, national origin, religion, sex, disability, veteran status, age, genetic information, sexual orientation, gender identity, quality of life, or any other ethically irrelevant criteria.
When resources become inadequate -- implicit in the Governor's recent news conferences -- triage involves a color-coded system of triage "priority scores." According to the statement, "All patients will be eligible to receive critical care beds and services regardless of their triage score, but available critical care resources will be allocated according to priority score, such that the availability of these services will determine how many patients will receive critical care."
The guidelines indicate health care providers must make an active assessment of the "patient's goals of care and treatment preferences. It is imperative to know whether aggressive interventions such as hospitalization, ICU admission or mechnical ventilation are consistent with a patient's preferences.... All hospitalized patients should be asked about advance care planning documents, goals of care, and are strongly encouraged to appoint a proxy decision-maker (e.g., medical durable power of attorney... or health care agent) if not previously in place. Patients in nursing homes, skilled nursing facilities, other long-term care settings, and outpatient care settings should also be asked about their goals of care and advanced care planning documents.... If advance clare planning documents are in place and available the healthcare provider should verify the patient's goals of care and treatment preferences remain the same....."
Will the patient's age, especially an advanced age, be relevant to a Arizona's Covid-19 crisis plan? On the one hand, the guidelines indicate "age" is expressly "removed ... as a specific factor for Triage Priority scores or Triage Color Groups." On the other hand, when determining the Triage Priority Score, points assessed must reflect an evaluation of whether the patient is "expected to live more than 5 years if patient survives the acute illness [zero points added]" or whether death is "expected wtihin 5 years despite successful treatment of acute illness [2 points added]." If "death [is] expected within 1 year regardless of successful treatment of the acute illness," 4 points are added. The patient's prioritization for critical care resources is best with a low score (1 to 3 total points), while priority is reduced to "intermediate" (4 to 5 points) or "lowest," if they are assessed with more than 6 total points. Further, "age" is implicitly involved as the prioritization process somehow examines the specific patient's "opportunty to experience life stages (childhood, young adulthood, middle years, and older years)."
These are obviously tough calls in any health care assessment contect, but especially so in the middle of a pandemic. Public health professionals have experience with these kinds of assessements. I suspect that many families also have engaged in a type of informal assessment when serving as a loved one's health care spokesperson or agent.
My sister and I were thinking about last summer as I visited this summer. Last summer, the two of us talked about similar factors when making the call on whether our mother would have hip-surgery at age 93 following a fall-related fracture. The doctor said that without the surgery our mother was unlikely to walk again because of pain; with the surgery there was a significant chance she would be able to walk without pain. She ended up sailing through the surgery -- and began taking steps again the same day. Ironically, probably because of her increasing dementia, she had no fear of falling nor any memory of the surgey and thus was soon fully ambulatory (although she did sometimes substitute a walker for her occasional cane) and remained so for all but the last few days if the next six months of life. That took her into the summer of 2019 in Arizona.
If the cornonavirus pandemic had occurred in the summer of 2019, and if safe access to hospitals and surgery were the issues, my best guess is Mom would probably have had a "high" score on any health care triage assessment -- in other words, not good news. We are glad we never confronted decisions about respirators or ventilators. We do know that our very elderly mother had a much better quality of life with major surgery than she would have had without it. Just one case, of course. Again, tough calls (and yes, expensive calls for Medicare) with or without a pandemic to complicate the decision process.
Monday, June 29, 2020
The Center for Medicare Advocacy (CMA) has released an issue brief on Medicare and Family Caregivers. "This Issue Brief examines the role Medicare currently plays, and could play, in assisting
beneficiaries and their family caregivers." The issue brief covers Medicare law, the need for coverage, issues with receiving Medicare home health care services, problems with access to coverage, the limited number of aides, and more. The Brief also discusses Medicare Advantage and in-home services.
CMA makes theses recommendations
- Ensure the scope of current allowable home health benefits, generally, and home health aides, specifically, are actually provided. Simply put, ensure that current law is followed;
2. Create a new stand-alone home health aide benefit that would provide coverage without the current skilled care or homebound requirements, using Medicare’s existing infrastructure as the vehicle for the new coverage; and
3. Identify other opportunities for further exploration within and without the Medicare program, including additional Medicare revisions, demonstrations, and initiatives overseen by the Center for Medicare and Medicaid Innovation (CMMI).
After providing some actual examples, the Brief provides insights into other additions to Medicare that would provide more services to beneficiaries. The conclusion provides that "Medicare home health coverage is not being implemented to the full extent of the law. If it were,
countless beneficiaries and families would be better off. Nonetheless, at best, the current Medicare benefit leaves far too many patients and caregivers behind. In order to provide quality home-based
care for individuals, and support for their caregivers, significant changes are needed to the
Medicare program and the broader health insurance system." (citations omitted).
Sunday, June 28, 2020
A few days ago CMS released a four page FAQ re: visiting residents in SNFs. Frequently Asked Questions (FAQs) on Nursing Home Visitation.
The FAQs include
1.What steps should nursing homes take before reopening to visitors?
2. The reopening recommendations maintain that visitation should only be allowed for
“compassionate care situations.” Do compassionate care situations only refer to
3. Can facilities use creative means, such as outside visits, to begin to allow for
visitation within the CMS and CDC guidelines; even before reaching phase three?
4.Can nursing home residents participate in communal activities before reaching
phase 3 of the nursing home reopening plan?
5.What factors should nursing homes consider when making decisions about
6. Should residents or visitors who have tested positive for COVID-19 participate in
7. Are nursing homes required to allow visits from the ombudsman when requested by
Friday, June 26, 2020
Each day I get a email from Kaiser Health News (KHN) that contains articles collected from the prior day on various health topics. Since COVID-19 arrived, the number of articles concerning nursing homes has greatly increased. I've refrained from writing about those-mainly because there are so many of them. But here's a recent article that I felt was too important to pass by.
The New York Times,ran an article with this eye-popping headline: ‘They Just Dumped Him Like Trash’: Nursing Homes Evict Vulnerable Residents. "Nursing homes across the country are kicking out old and disabled residents and sending them to homeless shelters and rundown motels." The article makes the point that caring for COVID-19 patients is more lucrative than long-term care residents.
"Many nursing homes are struggling in part because one of their most profitable businesses — post-surgery rehab — has withered as states restricted hospitals from performing nonessential services. ... Treating Covid-19 patients quickly became a popular way to fill that financial void... Last fall, the Centers for Medicare and Medicaid changed the formula for reimbursing nursing homes, making it more profitable to take in sicker patients for a short period of time. COVID-19 patients can bring in at least $600 more a day in Medicare dollars than people with relatively mild health issues, according to nursing home executives and state officials." Don't forget, however, that profit isn't the motive in every instance-remember back when the hospitals were jammed with COVID-19 patients and asked nursing homes to take some?
With SNFs shut down to outside visitors, Ombudsman visits may also be curtailed. And although the law requires that SNFs "find a safe alternative location for the resident to go, whether that is an assisted living facility, an apartment or, in rare circumstances, a homeless shelter... some homes have figured out a workaround: They pressure residents to leave. Many residents assume they have no choice, and the nursing homes often do not report them to ombudsmen." Only a handful of facilities have a moratorium on resident evictions during the pandemic.
Hello CMS-are you watching this?
Wednesday, June 17, 2020
The Supreme Court 's ruling on the fate of DACA-residents and workers in the U.S. could be issued this week. Regardless of the outcome on the case itself, everyone who cares about quality of health care, including long-term care, should also care about the United States' need to be honest about how much health care depends on the hard work and commitment to care provided by temporary-status and undocumented-status workers in health and personal care jobs. I've seen DACA workers in action in elder care, and I've seen their families ripped apart by harsh immigration rulings.
NPR's Morning Edition had a short and yet deeply important segment today on Health Care Workers Who Are Awaiting Supreme Court DACA Decision. Do listen to the podcast replay -- it is just 4 minutes -- and think about whether this is a key opportunity for a true, bipartisan solution for DACA-children (families) who so often are working in some of the most challenging (and dangerous) U.S. jobs during the COVID-19 pandemic. Let's do the right thing.
June 17, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, International, Medicaid, Medicare | Permalink | Comments (0)
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)
Friday, June 5, 2020
And you know when the SSA Trustees Report is out, the Medicare Trustees Report is soon to follow. The Medicare Trustees report is available here. There's no quick summary available, but the introduction and the overview provides some helpful info.
First, and importantly, this report doesn't take COVID-19 into account: "The projections and analysis in this report do not reflect the potential effects of the COVID-19 pandemic on the Medicare program. Given the uncertainty associated with these impacts, the Trustees believe that it is not possible to adjust the estimates accurately at this time."
Second, "Projections of Medicare costs are highly uncertain, especially when looking out more than several decades. One reason for uncertainty is that scientific advances will make possible new interventions, procedures, and therapies. Some conditions that are untreatable today may be handled routinely in the future. Spurred by economic incentives, the institutions through which care is delivered will evolve, possibly becoming more efficient. While most health care technological advances to date have tended to increase expenditures, the health care landscape is shifting. No one knows whether future developments will,on balance, increase or decrease costs."
Third, "Notwithstanding recent favorable developments, current-law projections indicate that Medicare still faces a substantial financial shortfall that will need to be addressed with further legislation. Such legislation should be enacted sooner rather than later to minimize the impact on beneficiaries, providers, and taxpayers."
Fourth, "The estimated depletion date for the HI trust fund is 2026, the same as in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years. HI income is projected to be lower than last year’s estimates due to lower payroll taxes. HI expenditures are projected to be lower than last year’s estimates because of lower-than-projected 2019 spending, lower projected provider payment updates, and incorporation of time-to death into the demographic factors used in the projection model. Partially offsetting this decrease in expenditures is higher projected spending growth for Medicare Advantage beneficiaries." (citations omitted)
Fifth, for Part B, "The SMI trust fund is expected to be adequately financed over the next 10 years and beyond because income from premiums and general revenue for Parts B and D are reset each year to cover expected costs and ensure a reserve for Part B contingencies."
Finally, note this: "The Trustees are issuing a determination of projected excess general revenue Medicare funding in this report because the difference between Medicare’s total outlays and its dedicated financing sources is projected to exceed 45 percent of outlays within 7 years. Since this
determination was made last year as well, this year’s determination triggers a Medicare funding warning, which (i) requires the President to submit to Congress proposed legislation to respond to the warning within 15 days after the submission of the Fiscal Year 2022 Budget and (ii) requires Congress to consider the legislation on an expedited basis. This is the fourth consecutive year that a determination of excess general revenue Medicare funding has been issued, and the third
consecutive year that a Medicare funding warning has been issued."
Thursday, June 4, 2020
Pittsburgh-based elder law attorneys Frank Petrich and Julian Gray write regular columns for the Pittsburgh Post-Gazette. Recently they pulled out their crystal ball to gaze into the future, with the hope that positive change is possible if we pay heed to the lessons we are learning during the response to Covid-19. In looking at long-term care, they write:
It has been difficult for families, as well as elder law attorneys, over the past few months to connect with clients in long-term care facilities. It’s understandable that restricting access to hospitals, nursing homes and other long-term care facilities saves lives and reduces exposure for all parties.
However, given the significant concentration of COVID-19 cases within nursing homes and the inability for families to be with loved ones in person, a radical shift in the delivery of long-term care services is on the horizon.
For now, this points toward more people wanting to receive assistance in their homes versus moving into a long-term care facility. Like many states, Pennsylvania has talked about developing programs to keep people in their homes since the Rendell administration.
Maybe now that push has come to shove and large stimulus packages are happening weekly, our government can truly live up to its promise of helping people stay in their homes while receiving their long-term care services and support.
For more, read Elder Law Guys: Long-term Care after COVID-19, posted May 25, 2020 for the Pittsburgh Post-Gazette.
Friday, May 29, 2020
Looking forward from COVID , here is a story from Wired, Some Nursing Homes Escaped Covid-19—Here's What They Did Right.
The story focuses on steps that can be taken, and the importance of doing so early. But even more so, the story examines the design of nursing homes. Think about it. As the article points out
Residents, who are older, frail, and often have comorbidities like heart disease or diabetes, are more susceptible to severe Covid-19 infections. Many need help performing basic tasks like eating, dressing, or bathing—care that can’t be delivered through a video appointment, making it more likely they could get an infection from the aides who help them, or pass the virus along to their caretakers. Those aides may work at several different facilities, and unknowingly carry it from one home to another.The layout of these facilities also furthers contact in various areas. Most residents share bedrooms, bathrooms, activity rooms, and dining rooms—and staffers share a break room. Those group spaces are designed partly to cut costs, and also to encourage socializing. But shared spaces have also helped spread the virus. Senior facilities do have protocols to handle outbreaks like the flu, but the pandemic arrived so quickly and the SARS-CoV-2 virus is so contagious that many facilities were caught unprepared. “There’s an extent to which this virus just had the upper hand,” says Anna Chodos, a geriatrician at the UCSF. Unlike hospitals, most nursing homes aren't ordinarily well stocked with gear like masks and gowns, which aren’t necessary when containing the flu.
[P]recautions are only helpful to a point, according to [one expert]. “These outbreaks are continuing and they’re going to continue in nursing homes,” she says. There are still a lot of unanswered questions about how and why the virus has spread so quickly in some homes, but not in others. Based on early data, she says: “It’s about the size of the facility and the amount of spread in your community.”
Nevertheless, [she] warns that while researchers are working furiously to figure out solutions, they still don’t have all the answers: “It's a turbulent time and we're trying to make clinical and operational decisions with incomplete information.”
The article then discusses caring for elders in their homes rather than SNFs and what it would take for that to become a common occurrence. With potential looming budget cuts from states, the potential for that shift may be a long time coming.
This article does a good job in covering the various issues faced by those who run SNFs as well as those faced by individuals who have family in SNFs. Read it!
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)
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 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?
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.
Wednesday, May 6, 2020
If you are trying to keep up with all the moving parts during the pandemic, you know how hard it is to stay on top of developments and ever-changing information. The Centers for Medicare and Medicaid Services (CMS) has been issuing a number of pandemic-related interim regulations, advisories, etc. which are available from their COVID-19 website. (You can also sign up for their daily emails which helps). I wanted to point out a few in case they escaped your attention.
- waiver of the 3 day-hospitalization requirement for SNF coverage.
- Requiring facilities to report COVID-19 cases to CMS, CDC, families, etc.
- Creation of an Independent Commission to Address the Safety & Quality in SNFs.
The website also has a lot of information about the various Medicaid waivers CMS has approved for states. CMS isn't the only government agency making changes tor respond as various issues crop up, due to the ongoing crisis. Subscribe to the daily CMS briefing to help you stay up on at least one agency's actions.
Friday, April 24, 2020
Transparency Issues in Long-Term Care: The Potential for Misuse of Confidentiality Policies to Hide Infection Facts from the Public
Recently I was talking with a friend in another state who is the director of an assisted living facility that largely serves older adults who have significant risks factors. I asked, "Have you had any residents or staff members that have tested positive for COVID-19?" I asked her directly, because there was no way to know the answer to that question from public websites, either in her state or on a national basis. The good news was that her facility had had no such diagnoses, either among staff or residents. I also asked what she felt was key to avoiding infections, and we talked about the rates uncovered in other facilities in her own state. She said bluntly, "We learned from our experience with influenza the last two years that we had to make real changes, and we did so before the COVID-19 was a reality and doubled down when we started hearing about the coronavirus."
Internal infections have long-been a documented problem in residential care settings, and certainly not limited to so-called "nursing homes." Contributing factors include residents who may have physical or mental conditions that make self-protection difficult and perhaps impossible. My sister and I used to struggle mightily with a family member whose dementia interfered with the simple task of hand-washing -- even though this same person was the one who taught us the importance of soap and water from the time we were small children. It is perhaps ironic to recall that as a horse-mad girl I had tried to persuade both of my parents that there should be an exception for "barn dirt," on my theory that horse-related dirt was "clean dirt." My mothers still insisted I undress on the back porch and wash thoroughly before coming in for dinner. Wise woman, one who was quick to dismiss utter nonsense.
Fast forward decades and every day I hear new arguments regarding why facilities that have experienced life-threatening infections should not be required to report this in a public venue. The most problematic argument is one that says an individual's infection is confidential medical information that prevents the facility from reporting statistical information, and thus an infection cannot be made public. I've seen arguments about federal or state record-keeping policies such as HIPPA privacy rules or Pennsylvania's confidentiality rules as the rationalization. I think I know what my mother would call this kind of argument.
Syracuse Law Professor Nina Kohn tackles the history of mishandled safeguards against infections in long-term care with an Op-Ed for The Hill. In "Addressing the Crisis in Long-Term Care Facilities," Professor Kohn points to specific actions at the federal level that have weakened, rather than strengthened, potential safeguards. She makes five specific recommendations, including prohibitions on staff working in more than one-long-term care facility, to reduce cross-contamination, and the need for family members and others to make it clear that we "are paying attention to what is happening." She reminds us: "Those who are health care agents for nursing home residents should not be afraid to request access to medical records, as federal law entitles them to do, if facilities are not forthcoming with information about the care being provided."
April 24, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, April 19, 2020
The news coming out of long term care facitilies about COVID-19 has been beyond comprehension. To compound matters, states that refused to release information about the facilities with COVID-19 cases compounded the trauma for families and patients. CMS has now issued a regulation for transparency, but no effective date was released with the notice:
CMS is committed to taking critical steps to ensure America’s health care facilities are prepared to respond to the 2019 Novel Coronavirus (COVID-19) Public Health Emergency (PHE). • Communicable Disease Reporting Requirements: To ensure appropriate tracking, response, and mitigation of COVID-19 in nursing homes, CMS is reinforcing an existing requirement that nursing homes must report communicable diseases, healthcare-associated infections, and potential outbreaks to State and Local health departments. In rulemaking that will follow, CMS is requiring facilities to report this data to the Centers for Disease Control and Prevention (CDC) in a standardized format and frequency defined by CMS and CDC. Failure to report cases of residents or staff who have confirmed COVID -19 and Persons under Investigation (PUI) could result in an enforcement action. This memorandum summarizes new requirements which will be put in place very soon. • Transparency: CMS will also be previewing a new requirement for facilities to notify residents’ and their representatives to keep them up to date on the conditions inside the facility, such as when new cases of COVID-19 occur.
The press release accompanying the release of the reg gives some background:
[T]he Centers for Medicare & Medicaid Services (CMS) announced new regulatory requirements that will require nursing homes to inform residents, their families and representatives of COVID-19 cases in their facilities. In addition, as part of President Trump’s Opening Up America, CMS will now require nursing homes to report cases of COVID-19 directly to the Centers for Disease Control and Prevention (CDC). This information must be reported in accordance with existing privacy regulations and statute. This measure augments longstanding requirements for reporting infectious disease to State and local health departments. Finally, CMS will also require nursing homes to fully cooperate with CDC surveillance efforts around COVID-19 spread.
CDC will be providing a reporting tool to nursing homes that will support Federal efforts to collect nationwide data to assist in COVID-19 surveillance and response. This joint effort is a result of the CMS-CDC Work Group on Nursing Home Safety. CMS plans to make the data publicly available. This effort builds on recent recommendations from the American Health Care Association and Leading Age, two large nursing home industry associations, that nursing homes quickly report COVID-19 cases.
“Nursing homes have been ground zero for COVID-19. Today’s action supports CMS’ longstanding commitment to providing transparent and timely information to residents and their families,” said CMS Administrator Seema Verma. “Nursing home reporting to the CDC is a critical component of the go-forward national COVID-19 surveillance system and to efforts to reopen America.”
“Scientific data derived from solid surveillance is a key element of recommendations to protect Americans, particularly our most vulnerable, from the devastating impact of COVID-19,” said CDC Director Dr. Robert Redfield. “This coordinated effort with CMS will allow CDC to provide even more detailed information to state and local health departments about how COVID-19 is affecting nursing home residents in order to develop additional recommendations to keep them safe.”
This is an important step-keep an eye out for the effective date-which is hopefully sooner rather than later.
Monday, April 6, 2020
The Social Security Administration (SSA) has made many changes to its policies and procedures in response to the COVID-19 pandemic. These changes impact all areas of the agency – the local offices, each state’s Disability Determination Service, and the hearing offices. This webinar will provide an overview of these changes, and offer suggestions for how advocates can interact with SSA during this unusual time.
Registration info is available here,
The second webinar, on April 14, 2020 covers Medicare and COVID-19. Scheduled for 2 p.m. edt, this webinar will cover "The Centers for Medicare & Medicaid Services (CMS) and new legislation have changed many of the rules in Medicare to respond to COVID-19. This webinar will focus on the changes to Medicare that most impact low-income older adults."
To register for this webinar, click here.
Tuesday, March 10, 2020
ACTEC (American College of Trusts & Estate Counsel) is devoting a volume of its Journal to Elder Law! Here's the info about the call for papers.
The American College of Trust and Estate Counsel announces a Call For Papers on the following topic:
With an aging generation of Boomers and increasing estate tax exemptions, the practice and study of trusts and estates may be driven less by tax planning and more by a host of other issues confronting an older population. Those issues may be broadly grouped under the term "Elder Law."
A special issue of the ACTEC Law Journal will be devoted to a discussion of the intersection of Trusts and Estates and Elder Law and will be comprised of brief articles (2,000 word maximum). The conception of Elder Law is broad and intended to encompass all matters of legal concern that a trusts and estates lawyer might address for an aging client – or a client who is concerned about aging. Suggested topics include retirement planning, financial planning and wealth management, guardianship, disability and medical care, end-of-life planning, incapacity, powers of attorney, health care proxies, nursing homes and long-term care planning, special needs trusts, Medicare, Medicaid, Social Security, elder abuse (physical or financial), age discrimination, family succession planning, grandparent visitation rights, and classic core trusts and estates topics like wills, trusts, intestacy, probate administration, and nonprobate transfers.
Procedure for proposals: Authors wishing to contribute to this special volume should send a brief proposal to Professor Alyssa A. DiRusso, Editor, ACTEC Law Journal, at firstname.lastname@example.org. Please include “ACTEC Elder Law” in the subject line of your e-mail.
Proposals are due by April 1, 2020. Early submissions are encouraged as proposals will be reviewed on a rolling basis. Given the brevity of each article, articles that delve into one or two topics in detail will normally be preferred over more general articles. We encourage submissions by authors from a variety of backgrounds, including those actively involved in fiduciary administration or the practice of law.
Final articles will be due by August 1, 2020 and will be published in the ACTEC Law Journal, Volume 46 Issue 1.
March 10, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Other, Social Security | Permalink | Comments (0)