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.
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.
Wednesday, June 3, 2020
Not surprising, but come on scammers. Well anyway, there's a proliferation of scams tied to COVID, not that any of us should find this unexpected. See, e.g., Corona Virus Scams, recently published in the ABA Senior Lawyers Division magazine, Voice of Experience.
So it was good news to see The Protecting Seniors from Emergency Scams Act would help prevent scammers from taking advantage of seniors during the coronavirus pandemic and future emergencies introduced in the Senate. Here's the info about the bill:
The Protecting Seniors from Emergency Scams Act directs the Federal Trade Commission (FTC) to report to Congress on scams targeting seniors during the coronavirus (COVID-19) pandemic and make recommendations on how to prevent future scams during emergencies. The bill also directs the FTC to update its website with information that will help seniors and their caregivers access contacts for law enforcement and adult protective agencies, and directs the FTC to coordinate with the media to distribute this information to ensure seniors and their caregivers are informed.
Keep an eye on this bill; hopefully it will get some traction!
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
With everything else we had going on, this one slipped past me. The SSA Trustees released their annual report in April. Here's the summary from the press release (note-this doesn't include COVID-19 impact analysis)
The Social Security Board of Trustees today released its annual report on the long-term financial status of the Social Security Trust Funds. The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASI and DI) Trust Funds are projected to become depleted in 2035, the same as projected last year, with 79 percent of benefits payable at that time.
The OASI Trust Fund is projected to become depleted in 2034, the same as last year’s estimate, with 76 percent of benefits payable at that time. The DI Trust Fund is estimated to become depleted in 2065, extended 13 years from last year’s estimate of 2052, with 92 percent of benefits still payable.
In the 2020 Annual Report to Congress, the Trustees announced:
- The asset reserves of the combined OASI and DI Trust Funds increased by $2.5 billion in 2019 to a total of $2.897 trillion.
- The total annual cost of the program is projected to exceed total annual income, for the first time since 1982, in 2021 and remain higher throughout the 75-year projection period. As a result, asset reserves are expected to decline during 2021. Social Security’s cost has exceeded its non-interest income since 2010.
- The year when the combined trust fund reserves are projected to become depleted, if Congress does not act before then, is 2035 – the same as last year’s projection. At that time, there would be sufficient income coming in to pay 79 percent of scheduled benefits.
“The projections in this year’s report do not reflect the potential effects of the COVID-19 pandemic on the Social Security program. Given the uncertainty associated with these impacts, the Trustees believe it is not possible to adjust estimates accurately at this time,” said Andrew Saul, Commissioner of Social Security. “The duration and severity of the pandemic will affect the estimates presented in this year’s report and the financial status of the program, particularly in the short term.”
Other highlights of the Trustees Report include:
Total income, including interest, to the combined OASI and DI Trust Funds amounted to $1.062 trillion in 2019. ($944.5 billion from net payroll tax contributions, $36.5 billion from taxation of benefits, and $81 billion in interest)
Total expenditures from the combined OASI and DI Trust Funds amounted to $1.059 trillion in 2019.
Social Security paid benefits of $1.048 trillion in calendar year 2019. There were about 64 million beneficiaries at the end of the calendar year.
The projected actuarial deficit over the 75-year long-range period is 3.21 percent of taxable payroll – higher than the 2.78 percent projected in last year’s report.
During 2019, an estimated 178 million people had earnings covered by Social Security and paid payroll taxes.
The cost of $6.4 billion to administer the Social Security program in 2019 was a very low 0.6 percent of total expenditures.
The combined Trust Fund asset reserves earned interest at an effective annual rate of 2.8 percent in 2019.
The full trustees' report is available here.
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.
Professor Hegland died over the weekend. The following is courtesy of Robert Fleming:
Kenney Hegland, long-time law professor, author, and advocate for various causes, died in Tucson on May 30, 2020. He had been a major force in the lives of many law students and lawyers for a half century.
Prof. Hegland arrived in Tucson (in 1971) as a 30-year-old lawyer with four years of experience, to help run the Neighborhood Law Office. The NLO, a clinical program offered by the University of Arizona College of Law, was the brainchild of Kenney and fellow young lawyer Andy Silverman. The two of them defined law school clinical programs in Arizona for the next couple decades. The idea of standalone clinical programs was brand-new, exciting and not a little bit edgy. It was a perfect fit for his vigorous, eclectic and avant garde style.
The NLO offered a generation of law students an opportunity to better understand the mechanics of client management and the economics of law practice. It was an excellent idea, much beloved by those who went through it. Of course it couldn’t last.
But Prof. Hegland did. He moved into the academic arena with gusto. He wrote extensively – his writing credits include sole or joint authorship of two dozen books and dozens of articles. His interests were wide – from legal clinics, to law-related education for high school students, to mental health issues to aging and the law. In fact, that last interest blossomed into our continuing collaboration, beginning in about 2005.
I had often said that Kenney Hegland was one of the most interesting and inspiring teachers I never took a class from. Working with him for the last fifteen years has deepened that belief. He was driven. He was remarkably funny and literate to an extent that helped me maintain my humility. He was acerbic, and affectionate, and always looking for a new way to help other people. He would have been perfectly okay with getting rich while offering help, but the help was more important than the riches.
Kenney and I wrote three books together (one of them twice). We had vigorous discussions on many issues – from the significance of living wills (he called them “Suggestions, Not Demands” in an article in the Arizona Attorney in 2004) to the utility of YouTube videos (he created one, ironically, on hospice care earlier this year – see www.GoGentle.org).
But here’s the thing I’ll always remember best about Kenney: he didn’t think the study of law should be about reading cases, diagramming holdings and annotating casebooks. Students in his elder law seminar at the UofA were required to visit a senior center, or talk with patients in a local nursing home, or ride along with Meals-on-Wheels providers. They were also given novels to read and discuss, or topical movies to watch. He wanted them to learn about humanity while studying the law.
Kenney’s favorite class, which he taught for many years: Law & Humanities. What an opportunity for him! It helped him focus on a half dozen pieces of literature with a legal tinge – but seldom more than a passing reference to the law. And it gave him another reason to read voraciously and discuss intellectually – with co-presenters, local attorneys he drafted into co-teaching, and students who must not have known what was about to hit them.
Kenney’s wife, retired Judge Barbara Sattler, wrote a few books herself, including two novels focused on legal issues (“Dog Days” in 2013, and “Behind the Robe” in 2019). Not to be outdone, Kenney tried his hand at the genre, as well – his 2014 novel “Law Prof” was about – well, you can guess.
Prof. Hegland leaves behind his wife Barbara and four children. He was immensely proud of all of them, and truly enjoyed a late-life opportunity to practice law in connection with one. He also leaves a legacy of nearly half a century of law students, most of whom are likely to say that he was one of the most energized, inspiring and humane teachers they ever had.
Thank you Professor Hegland. You will be remembered.
Monday, June 1, 2020
I'm a huge fan of the work of the ABA Commission on Law & Aging (COLA). I frequently recommend their publications to others and look forward to their annual statutory updates, among other of their projects. The work they do has a huge impact both for the legal profession as well as clients. They recently released a short video about the Commission to explain more about the work they do. You can find the video here (it runs a little over 5 minutes).
Sunday, May 31, 2020
Busy tomorrow, June 2, at 2 edt? Take a break and register for this webinar from DOJ's Elder Justice Initiative. State Elder Justice Coalitions: Informing Services and Influencing Public Policy:
Join us for the webinar, State Elder Justice Coalitions: Informing Services and Influencing Public Policy. With increased attention to elder justice, Elder Justice Coalitions are forming throughout the country. While their composition varies, state Elder Justice Coalitions address such issues as public policy, practice, professional training, and public awareness. Members of the National Network of State Elder Justice Coalitions (NNSEJC) Steering Committee will illustrate examples from coalitions across the nation. Topics include development and structure; priorities and notable accomplishments; sustainability; and the roles of the NNSEJC. Time will be allotted to answer attendee questions.Please view our recent article, Building a National Elder Justice Movement, State by State
(pp. 111-116), at: https://online.flippingbook.com/view/185807/112/
Click here to register for this webinar.
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!
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.
Thursday, May 28, 2020
From Forbes, a deep dive into "The Most Important COVID-19 Statistic: 43% of U.S. Deaths Are From o.6% of the Population." This will undoubtedly be an ongoing topic for examination for statisticians and analysts.
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.
It's hard to keep track of the numerous stories on COVID-19 in LTC facilities, reopening LTC facilities, CMS waivers, CMS guidance, shield laws in various states, and more. Although Professor Pearson and I have been blogging about these issues for a few weeks, I wanted to list a few more stories here (without discussing them) just in case you missed any of them.
- Nursing Homes Seek Immunity Amid COVID-19 Crisis, Alarming Advocates
- Nursing Homes to Get $4.9 Billion From HHS to Combat Virus (1) (may require subscription)
- U.S. nursing homes plagued by infection control issues pre-COVID-19: report
- Trump Administration Issues Guidance to Ensure States Have a Plan in Place to Safely Reopen Nursing Homes
- Trump wants nursing homes to test all staff and residents. That may not be possible.
- Toolkit on State Actions to Mitigate COVID-19 Prevalence in Nursing Homes
- Older does not equal expendable. We need to act in a way that protects our elders from coronavirus
- Halted Nursing Home Inspections Draw Ire of Lawmakers, Attorneys\
I have no doubt there are more...and will continue to be more.... so stay tuned.
Tuesday, May 26, 2020
George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona." This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed. She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years. Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."
It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.
At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.”
Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."
Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.
She questions the statistical basis for some governments' decisions to impose mandatory isolation:
The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.
But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?
She is provocative. She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.
For more, read the full blog post linked above. For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!
May 26, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Housing, International, Statistics | Permalink | Comments (0)
The American Bar Association Commission on Law & Aging (COLA) has released their annual update of elder abuse statutes. The chart runs 61 pages, is organized by state, and can be accessed here.
The chart includes statutes & case law, mandatory reporters, when & how to report as well as other resources. Bookmark this-it's an important resource!
Monday, May 25, 2020
On Memorial Day, we have important opportunities to think. Today, I've been thinking about those lost in wars and those who survive. A year ago, I joined a group doing a World War II memorial tour of England and France. I was unprepared for how much walking the beaches at Normandy and the nearby cemeteries would affect me. Even though my family was not directly impacted by that war, it was a reminder that we are all affected by tragic losses of life.
Today I also just read a very thoughtful piece written by Marcella Goheen for the New York Times. An image of another war emerges. She explains how her husband at age 65 has been affected by a neurodegenerative disorder that makes it impossible for him to care for himself, and eventually became so severe that it also was impossible for her to care for him at home. We forget that "nursing homes" are often not just for the very elderly, and can become the short-term or long-term homes of anyone with severe disabilities. But that doesn't mean that people go there "to die."
There is life in a nursing home. My husband worked in special education for over 20 years. He understands deeply the value of a life, no matter what form that life takes. He would fight for his fellow residents if he could. I feel betrayed because, while leaders like Gov. Andrew Cuomo and Mayor Bill de Blasio were speaking in their daily news conferences of the “vulnerable population” that needed the most help, not one federal, city or state agency prioritized preventing the loss of life in nursing homes. Instead, officials fought over whose responsibility it was to serve the chronically ill, elderly and disabled people who live in New York State nursing homes. In a mid-April news conference, Governor Cuomo said that “it’s not our job” to provide personal protective equipment to nursing homes in New York City.
My husband was thrown into a war on the vulnerable without a chance — he cannot care for himself or protect himself from a virus that doesn’t have a vaccine. The fact that he is still alive is a miracle. As of May 10,it was likely that over 5,000 residents in nursing homes statewide had perished. They matter. To be given a chance to live is a human right, and the business of care that impedes this right in any way needs a major reckoning. Not testing health care workers and residents, not addressing staffing shortages, not updating families on loved ones’ conditions and not producing effective plans for managing infections within nursing homes is unacceptable.
There is much more to The Crisis at My Husband's Nursing Home, where she reports that 98 have died with diagnoses of Covid-19.
Sunday, May 24, 2020
Is What CMS Doesn't Say as Important as What CMS Does Say in Recommendations for "Reopening" Nursing Homes?
On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19."
In some ways, nursing homes may be breathing a sigh of relief as the memo does not use any mandatory language directed at the operators. In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases. The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. What does that mean? You should be able to test everyone before you ease visiting restrictions, but you can choose not to do so? On page 4, CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan. The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines, although with no hard numbers for such oversight suggested.
CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases."
Significantly, there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination. That seems to me, at least, especially short-sighted.
May 24, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)