Thursday, April 15, 2021
Kaiser Health News ran an interesting story about aid in dying in Montana. Getting a Prescription to Die Remains Tricky Even as Aid-in-Dying Bills Gain Momentum
[I]n 2009, the Montana Supreme Court had, in theory, cracked open the door to sanctioned medically assisted death. The court ruled physicians could use a dying patient’s consent as a defense if charged with homicide for prescribing life-ending medication.
However, the ruling sidestepped whether terminally ill patients have a constitutional right to that aid. Whether that case made aid in dying legal in Montana has been debated ever since. “There is just no right to medical aid in dying in Montana, at least no right a patient can rely on, like in the other states,” said former state Supreme Court Justice Jim Nelson. “Every time a physician does it, the physician rolls the dice.”
The article discusses the legislative efforts on both sides of the issue. Fascinating story!
Monday, February 22, 2021
Despite projects to vaccinate those elders who are homebound or lack internet access, we are still lagging behind on reaching them, according to a story today in Kaiser Health News. Countless Homebound Patients Still Wait for Covid Vaccine Despite Seniors’ Priority starts with the good news-recognizing the unique outreach efforts by hospitals, health systems, and paramedics, for example. These folks are home are highly vulnerable. Described by one expert in the article as a "hidden group", they are at great risk, "[b]y virtue of their age and medical status, these seniors are at extremely high risk of becoming seriously ill and dying if they get covid-19. Yet, unlike similarly frail nursing home patients, they haven’t been recognized as a priority group for vaccines, and the Centers for Disease Control and Prevention only recently offered guidance on serving them." The article notes that those professionals whoa are regularly in contact with them are not those with access to vaccines. Medicare's reimbursement rates for time-consuming house calls doesn't allow the health care professionals to recoup their costs, notes the article. Not only that, knowing the storage requirements for the vaccines doesn't mean a health care professional can just hop into their car and drive around with the vials in a cooler.
So this brings us to this story, a new hero for all of us! Last week in the New York Times, Woman, 90, Walked Six Miles in the Snow for a Vaccine
explained how after that recent snow storm, driving was out for her, but given all her previous failed efforts to get the vaccine, she wasn't going to miss this opportunity.
Where's Rosie the Riveter when we need her?? Surely "we can do it" or at least do better?
Thursday, February 18, 2021
Register now for two upcoming webinars.
1. Webinar: Financial Protection for Older Adults During the COVID-19 Pandemic set for Feb 23, 2021 at 1 eastern.
Join experts from the Consumer Financial Protection Bureau (CFPB), the Federal Communications Commission (FCC), and ACL on Tuesday, February 23 at 1 pm ET for a free webinar on financial protection of older adults during the COVID pandemic. The FCC will begin the program with an overview of coronavirus-related phone scams targeting older adults. The CFPB will share resources to help older adults address the financial impact of the pandemic. HHS will conclude the webinar with a discussion of the role of the aging services network.
Click on FCC live link to join the webinar on Feb 23 at 1 eastern.
2. A series of 3 webinars from the DOJ Elder Justice Initiative;
- March 4th 2pm EST | Programs for Older Adults Who Have Experienced Financial Exploitation. Learn about three distinct programs designed specifically for older adults who have experienced financial exploitation. Register here.
March 23rd 2pm EST | The Path Forward: One MDT’s Journey to Address the Impact of Racial Injustice on Their Work. The Hennepin County Minnesota Adult Protection/Law Enforcement Multi-Disciplinary Team “MDT” provides a model case study of the impact of racial injustice on their work as an elder abuse MDT in Minneapolis. Register here.
April 13th 2pm EST | Tackling Transnational Robocall Scams: The Importance of State and Federal Partnerships Features a Federal and State partnership that successfully fought against computerized autodialing “robocall” scammers. Register here
February 18, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Wednesday, February 17, 2021
First, good news from California. Recognizing the issue with elders who may not be able to get to vaccine sites (or sign up online....), Kaiser Health News reports on one solution in California. Vaccines Go Mobile to Keep Seniors From Slipping Through the Cracks
The team of county nurses and nonprofit workers is targeting Contra Costa County residents who are eligible for covid vaccines but have been left out: residents of small assisted-living facilities that haven’t yet been visited by CVS or Walgreens, and occasionally people who live in low-income senior housing. The retail pharmacy giants have a federal government contract to administer vaccines in most long-term care facilities.
Launched a few weeks ago, the strike team moves through each vaccination clinic with practiced choreography. At a small group home in Antioch recently, a nurse filled syringes while another person readied vaccine cards and laid them on a table. An administrative assistant — hired specifically for these clinics — checked everyone’s paperwork and screened them for symptoms and allergies before their shots, logging them into the state’s database afterward. After the shots, a strike team member told each person when their 15 minutes of observation was up.
The endeavor is going to take time because there are so many of these facilities, many of which have just a handful of residents. It may be slow-going, but it's going!!!!
So that was the good news. Now for the not-so-good, but not surprising news from this article also published in Kaiser Health News: Family Caregivers, Routinely Left Off Vaccine Lists, Worry What Would Happen ‘If I Get Sick’.
Tens of thousands of middle-aged sons and daughters caring for older relatives with serious ailments but too young to qualify for a vaccine themselves are ... terrified of becoming ill and wondering when they can get protected against the coronavirus.
Like aides and other workers in nursing homes, these family caregivers routinely administer medications, monitor blood pressure, cook, clean and help relatives wash, get dressed and use the toilet, among many other responsibilities. But they do so in apartments and houses, not in long-term care institutions — and they’re not paid.
““In all but name, they’re essential health care workers, taking care of patients who are very sick, many of whom are completely reliant upon them, some of whom are dying... Yet, we don’t recognize or support them as such, and that’s a tragedy.”
If the caregiver is older and meets the age-threshold for the caregiver's particular state, then the caregiver is eligible for vaccination that way. But the younger caregivers are out of luck right now. This is an important article. Read it!
Monday, February 15, 2021
Read these three articles, to get a full picture of what happened. First, the AP story: AP: Over 9,000 virus patients sent into NY nursing homes. Next, the CNN story: New York governor's top aide apologizes and says administration 'froze' after inquiries on Covid-19 deaths at long-term care facilities. Finally, Politico's story: Top Republicans call for Cuomo's ouster following nursing home revelation.
Monday, February 8, 2021
A couple of weeks ago the New York Times ran this article, Filing Suit for ‘Wrongful Life’, which asks this question: "More Americans are writing end-of-life instructions as the pandemic renders such decisions less abstract. But are medical providers listening?" The article features one case in litigation where the surviving spouse claimed that the health care providers failed to honor the patient's directive claiming the health care providers "disregarded a New York State MOLST — medical orders for life-sustaining treatment — form and his spouse’s explicit instructions to a doctor who called to seek her guidance." The article gives a good explanation of the issues and a review of prior cases on similar topics. This is an important issue and I'm going to have my students read the article.
Thursday, February 4, 2021
A couple of recent articles about NY SNFs will make you stop and think.... hmmmm.. First, Politico noted a recent NY AG report New York undercounted nursing home deaths by as much 50 percent, report finds.. Nursing Home Response to COVID-19 Pandemic report includes preliminary findings
OAG’s preliminary findings are:
» A larger number of nursing home residents died from COVID-19 than DOH data reflected.
» Lack of compliance with infection control protocols put residents at increased risk of harm during the COVID-19 pandemic in some facilities.
» Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings4 had higher COVID-19 fatality rates than facilities with higher CMS Staffing ratings.
» Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm during the COVID-19 pandemic in some facilities.
» Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm in some facilities.
» The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE.
» Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and,
» Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.
Then consider this article in the Washington Post. Andrew Cuomo’s bad ‘who cares’ answer on coronavirus nursing home data
Facing a brutal report from his own party’s state attorney general that said the state had undercounted nursing home deaths from the virus, Cuomo essentially argued that it’s neither here nor there.
“Look, whether a person died in a hospital or died in a nursing home, it’s — the people died,” Cuomo said. “People died. ‘I was in a hospital, I got transferred to a nursing home, and my father died.' ‘My father was in a nursing home, got transferred to a hospital, my father died.’ People died.”
It does matter. As the article notes "there are major and very valid questions about whether nursing home policies led to unnecessary ones. To the extent that more deaths occurred in or came from that setting, it allows us to evaluate how significant that problem was and how much corrective action is needed."
Tuesday, January 26, 2021
There have been some stories about the impact COVID is having on the prison population. A news station in Denver, CO ran this story a while back, Broncos players join campaign to release medically-vulnerable inmates during pandemic. The ACLU in Colorado has an effort underway to get the Colorado governor to grant clemency to low-risk prisoners. The sidebar on the ACLU page gives examples of folks in prison who are medically-compromised but likely low risk if released. The Marshall Project has a state by state list of COVID in prisons, concluding about 20% of prisoners have COVID. The Federal Bureau of Prisons also has information covering COVID in prisons, which includes their modified operations plans. Although in person visits were suspended, a November update indicated those would be resumed, with safeguards. With the latest surges, I expect those will again be suspended.
And although prisons are "COVID hotspots," prisoners may not be high in priority for the COVID vaccine per a recent article in the Washington Post, Prisons are covid hot spots. But few countries are prioritizing vaccines for inmates.
Since this is the elderlawprof blog, are you wondering what this has to do with Elder Law? Just google "elderly prisoners and covid" and look at the results. Here are a few:
- Supreme Court denies request from geriatric prisoners seeking Covid relief
- COVID-19 and the Compassionate Release of the Elderly, Infirm or High Risk
- Sick, elderly prisoners are at risk for covid-19. A new D.C. law makes it easier for them to seek early release.
- Pandemic underscores need to release more elderly prisoners | COMMENTARY
January 26, 2021 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, January 7, 2021
Mark your calendars for January 21, 2021 at 2 p.m. eastern for a webinar on Elder Abuse Prevention, Intervention, and Remediation from the National Center on Law and Elder Rights.
Everyone who works with older adults has a role to play in prevention, intervention, and remediation of abuse, neglect, and exploitation. Helping starts with understanding the landscape of elder abuse and the service providers and systems involved in addressing abuse. This legal basics training will provide an overview of the fundamentals of abuse, neglect, and exploitation and the signs and signals of abuse that attendees can reference in their daily lives and work.
At the end of this training, participants will be able to:
- Describe the three stages of responses to abuse
- Apply basic definitions of abuse, neglect, and exploitation
- Identify risk factors or signs of abuse, neglect, or exploitation
- Identify the differences between undue influence, exploitation, and fraud
- Describe added risks in a time of COVID-19
To register, click here.
Thursday, November 19, 2020
I love the Marvel movies and always enjeoyed seeing the cameos of Stan Lee in the movies. I'd heard stories about the last few years of his life.
The Last Days of Stan Lee: A heartbreaking tragedy about the (alleged) abuse of the Marvel Comics creator by those who swear they loved him opens with the telling of a video of Mr. Lee filmed at a Comic Con, followed a few days later by a story in another publication. The article notes that almost 2 years after Mr. Lee's death, there are many unanswered questions and several cases pending in courts:
[A] half-dozen civil suits are pending and a criminal elder-abuse prosecution by the Los Angeles County District Attorney’s office remains mired in pretrial maneuverings. The courts have yet to shed light on many of the details and the veracity of the elder-abuse charges against several people. Elder-abuse cases are difficult to bring to trial, tough to litigate and hard to win. Was Stan Lee, like 1 in 10 Americans over age 60, a true victim of elder abuse, which can include physical violence, emotional torment, financial exploitation and willful deprivation? Plenty of evidence and testimony suggests that may be true.
The article details the decades of his career and his personal life. The article focuses on Mr. Lee's relationship with those close to him, including his daughter.. As the story wraps up, the writer tells us
THE LAWSUITS churn through the system. Delays give way to delays, and the accused sit mostly at home like the rest of us this year. As with so many elder-abuse cases, those involving the Lee estate will likely come down to “he said, she said.” Except, in this situation, there’s a three-ring circus of barkers and performers who may not have had Lee’s best interest at heart, in a charade that went on for years. Call it the long con, but “those types of relationships are much more difficult to pinpoint as being perpetrators,” said elder-abuse prosecutor Paul Greenwood. “I always say that the longer the victim and suspect have known each other, the more difficult it becomes to establish beyond a reasonable doubt that undue influence was exerted over that person, because sometimes loyalty is rewarded.”
In a less lawyerly explanation, the villain in this story is love. Abuse of the elderly routinely cloaks itself in love, which is, in many cases, returned by the victim. The perpetrators might even call love their motivation.
It will be a while before we know the full story (if ever). Stay tuned.
November 19, 2020 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 28, 2020
Two researchers are collecting data on court monitoring involving conservatorships and guardianships.
The National Center for State Courts would like to learn about your experiences with court monitoring practices of guardians and conservators.
This survey is part of the research that [two researchers] are conducting in preparation for the 4th National Guardianship Summit to be held in May 2021, at the Syracuse University Law School.
Please answer the questions with reference to the jurisdiction you are most familiar with. Responding to the survey will take less than 15 minutes of your time. You will not be identified in any manner, as findings from the study will be presented only in the aggregate.
The researchers acknowledge the assistance of the State Justice Institute in conducting this survey.
September 28, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, June 18, 2020
On Monday, June 22, 2020, I'm joining the 3rd Annual Memorial Elder Abuse Sympsium hosted by Legal Aid Services of Oklahoma and being delivered as a webinar over the course of several sessions. On Monday, the first set of speakers includes deeply experienced professionals in banking and securities, both potential avenues for elder fraud, as well as Judge Scott Roland of the Oklahoma Court of Criminal Appeals. I follow them with the topic "Extreme Home Takeovers - Dealing with Concerned Relatives" -- the clever title supplied by our hosts!
I'll be offering comparative statutory and common law approaches for recovering a house. including my own experiences while supervising Dickinson Law's Elder Protection Clinic. The need is usually triggered by a transaction often tied to the worries of the older person, hoping or believeing that a family member, friend or new "befriender" would be more likely to save them from the dreaded nursing home if they give the hoped-for-caregiver "the house." I'll be using cases from Ireland, Pennsylvania, Oklahoma (of course) and beyond for strategies, and discussing everything from filial support laws, to improvident tranaction laws, to the common law concept of failure of consideration in "support deeds."
Monday, June 8, 2020
Oklahoma Legal Aid Services Update: 3rd Annual Memorial Elder Abuse Symposium Goes Virtual, Starting June 15
This year, the Sonya L. Patterson Elder Abuse Symposium hosted annually by Legal Aid Services of Oklahoma, will take place over the course of several weeks, in bite-size programming, rather than in a single, all-day conference format. In light of the online setting, the organizers are also able to open up registration and attendance to interested people outside of Oklahoma; however, there are limits on the number who can attend each session, so I recommend registering early. In past years, the symposium has drawn an audience of attorneys, law enforcement and social workers, with CLE credits available.
I'm very pleased for the opportunity to be a speaker this year. In addition to attorneys and judges, the speakers include health care professionals and bankers. The program honors the life and advocacy of a young Oklahoma public interest attorney, Sonya L. Patterson, who passed away far too soon in 2015, as the result of an accident at the age of just 30.
Here's the line up for the midday Symposium Webinar Series , with all sessions taking place on Central Daylight Savings Time:
Session 1: Monday, June 15th (11:00 am to 1:45 pm)
- The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
- Attorney Responsibility to Client’s Ward or Principal- Rick Goralewicz, Staff Attorney, Legal Aid Services of Oklahoma
Session 2: Monday, June 22nd (11:00 am to 1:15 pm)
- Financial Exploitation of the Elderly- Justice Scott Roland, Oklahoma Court of Criminal Appeals with Elaine Dodd, Executive Vice President/ Fraud Division at Oklahoma Banker's Association and Jennifer Shaw, Oklahoma Securities Commission
- Extreme Home Takeover: Dealing with the “Concerned Relative”- Katherine C. Pearson, Professor of Law at Dickinson Law, Pennsylvania State University, Carlisle Pennsylvania
Session 3: Wednesday, June 24th (11:00 am to 1:15 pm)
- Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
- Experts: Identifying and Utilizing in Elder Abuse Litigation- Kara Vincent, Attorney, Barber and Bartz
Session 4: Monday, June 29th (11:00 am to 1:15 pm)
- Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
- Abuse in Institutional Settings- William Whited, State Long Term Care Ombudsman and Nicole Snapp-Holloway, Attorney at Maples, Nix and Diesselhorst
Session 5: Wednesday, July 1st (11:00 am to 1:15 pm)
- Incompetency, Incapacity and Vulnerability- Mark Holmes, Attorney at Holmes, Holmes and Niesent, PLLC, Travis Smith, Attorney at Holmes, Holmes and Niesent, PLLC and Cathy Wood, Adult Protective Services
- Isolation and Loneliness- Laurel Dinkel, LCSW, Norman, Oklahoma
Click HERE for access to registration information for individual sessions or the entire series. My thanks to Oklahoma Legal Aid Staff Attorney Rick Goralewicz for the invitation.
June 8, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, State Cases, State Statutes/Regulations, Statistics, Webinars | Permalink | Comments (0)
Saturday, June 6, 2020
From a sad, powerful story about one of many deaths at Isabella Geriatric Center, carried in the New York Times:
A little after 1 in the afternoon, Aida Pabey got the call from the nursing home: Her mother was not going to make it. It was April 6, nearly four weeks after the state had barred all visitors to nursing homes, and Aida and her sister, Haydee, had been struggling to get even the most basic information about their mother. Was she eating? Had the coronavirus reached her part of the home?
Now this dire call. Just the day before, the sisters had been assured by an aide that their mother was “fine.”
They were both detectives in the New York Police Department, 20-year veterans. They were used to getting information, even from people determined to withhold it. But the nursing home had been a black box.
They raced to the home. Haydee got there first and managed to get upstairs. Aida, arriving second, identified herself as a crime scene investigator and brought safety gear. “I had my face shield, my bootees, my mask, my gloves,” she said. The security guard refused to let her in. “No. It was, ‘No way.’”
For more read, When Their Mother Died at a Nursing Home, 2 Detectives Wanted Answer. As one of our Blog's readers has commented recently, "we need to go a step deeper to the ROOT cause of these serious breaches of safe practices in care facilities."
June 6, 2020 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, June 5, 2020
Must Any Public "Right to Know" the Covid-19 Infection Status of LTC Facilities Depend on Legislation?
Under the best of circumstances, it is difficult to make a decision about whether to place a fragile loved one in a care community. With COVID-19, such a decision can be even more difficult, as some states states (and some facilities) have resisted making public the names of long-term care facilities where residents or staff have been diagnosed with COVID-19.
In Arizona, a "right to inspect public records" suit was filed on May 5, 2020 by news organizations, seeking to review "public records" that show the number of COVID-19 positive residents at nursing care institutions, as well as the number of transfers made between such facilities and Arizona hospitals. They were not requesting the identity of the residents; however, disclosing records containing the numbers would disclose the names of the facilities. That state's Governor has reportedly taken the position that not disclosing the COVID-19 infection history of facilities by name is "in the best interest of public health."
On May 29, Maricopa County Superior Court Judge Christopher Coury ruled against the news organizations. In the 23-page opinion in CV 2020-005385, Judge Coury concluded with these interesting paragraphs:
72. Both Plaintiffs and Defendants have asserted legitimate positions in this action, particularly given that the underlying issues are important and weighty in the lives of Arizonans. It is beyond dispute that Arizonans who have parents, aunts, uncles, friends, neighbors, and loved ones living, or who may in the future be placed, in a Facility to care for them want, and justifiably deserve, to know how that Facility and its residents have fared during the Covid-19 public health emergency. As a son, nephew, friend, and neighbor, this judicial officer understands, respects, and empathizes with the need for Arizonans to have access to the information contained in the Records. Fortunately, this need of family and caregivers has been mitigated, if not eliminated, by EXECUTIVE ORDER 2020-35, which requires Facilities to provide Covid-19 information to residents, transferees, and applicants – and their guardians and next of kin – on a prompt basis.
73. It is not the position of the Judicial Branch to enact legislation or to create policy – that responsibility rests squarely with the other branches of government. The Legislature could consider the policy implications on all sides of this issue, and if desired, enact clarifying legislation and expressly protect records, or direct that records be released. If any frustration exists, it is that this has not happened. The Act – the legislation authorizing the actions at issue – lacks clarity. Rather than using model legislation with clearly defined terms, and rather than actually defining the terms used, the Legislature in 2002 created Arizona-specific legislation, apparently from whole cloth. Even though the subject matter of the Act relates to emergencies – instances when clear statutes are needed to permit critical, decisive and time-sensitive actions – the Act left critical terms undefined. Eighteen regular legislative sessions have passed, and the Act has not been amended or clarified. Perhaps this is the fortuitous result of not having to deal with a widespread health emergency during the intervening years. Nonetheless, if this decision illustrates nothing else, it highlights the need for the Legislature to revisit the Act and make it more workable for all concerned. In its present form, the ambiguous Act does a disservice to the media, to government leaders, to the courts, and to all Arizonans.
74. Arizona has been profoundly impacted by Covid-19. Lives have been lost. Women and men, old and young, have been sickened. The economy has been set back. Livelihoods of people have been compromised. Weddings and religious ceremonies have been delayed. Births and funerals have been isolated. Students have missed classes and graduations. Temptation exists to simply adopt jurisprudence that because Covid-19 has created such harm in our state and because Arizonans need information to battle Covid-19, sufficient justification exists to “look the other way” and require release of the Records. This judicial officer, however, will not and cannot do this. Indeed, were this judicial officer to ignore the law, Arizona’s Constitution – and its provisions of limited government and separation of powers – would be added to the list of Covid-19’s victims. The Court will neither countenance nor assist in this. Although difficult in the face of this devilish virus, fidelity to the Constitution and laws of the State of Arizona must prevail.
Therefore, Judge Coury entered judgment against the News Organizations as plaintiffs with respect to their request to produce records containing numerical information on COVID-19 infections at specific facilities, ruling that this was medical information that was "confidential and protected as a matter of law."
The court found that a triable issue exists relating to other issues in the case, "specifically, Defendant's failure to produce documents relating to information regarding the availability of PPE."
Note: I have not yet found a public website containing Judge Coury's decision, although it appears the order is not a restricted document. If any of our readers come across such a site, feel free to let me know and I can amend this post to link to the full opinion.
My thanks to Jon Dessaules, a former Dickinson Law student, now a long-established Phoenix attorney, for assistance in tracking down information on this case.
Wednesday, June 3, 2020
National Continuing Care Residents Association Joins Other Senior Living Advocates in Opposing COVID-19 Immunity
On June 1, 2020, the National Continuing Care Residents Association (NaCCRA) released its public statement detailing the organization's opposition to COVID-19 immunity or waivers of liability for nursing homes, adding to the growing chorus of opposition. They explain:
CCRCs mainly provide three levels of care under one roof or on the same campus, normally comprised of independent living, assisted living, and skilled nursing care -- the latter two considered licensed long-term care facilities. Our members can reside at various times in any of the three levels of care. Fore example, one spouse can live independently while the other can live in assisted living or skilled nursing. There are numerous variations of these living arrangements depending on the level of care required.
NaCCRA and its members are very sympathetic to the CCRC managers and front-line care/service workers as they labor during the coronavirus pandemic with its many challenges. However, residents living and dying, many times alone, in nursing homes or assisted living apartments, should not be deprived of their legal rights or protections even in these most extraordinary times.
NaCCRA and its member residents living in continuing care settings are alarmed at the push to grant liability immunity to providers and operators of long-term care facilities in the face of the COVID019 epidemic. Many states have acquiesced to provider association lobbyists at the expense of residents' legal protections. NaCCRA believes that long term care providers must not be given a pass on negligence in any form simply due to a pandemic, which makes seniors in such congregate settings even more vulnerable.
Therefore, we strongly oppose the liability waivers for COVID-19 legislated by some states. WE urge that these be repealed and advocate on immediate moratorium on any future waivers for providers/operators of CCRCs and long-term care facilities. It is our position that existing laws and negligence standards are more than adequate to protect long term care facilities that are sued if they have followed the proper standards of care and protocols.
My thanks to Jim Haynes, the current president of NaCCRA, for keeping us advised on their position.
June 3, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Retirement, Science, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)
Tuesday, June 2, 2020
For more than ten years it is probably fair to say that the most ubiquitous appellate "elder law" cases are those involving attempts by nursing homes to compel arbitration, rather than court-based litigation, usually raised as a defense to personal injury suits brought by residents or family members of residents. Admission contracts routinely include mandatory arbitration clauses. Arbitration is often promoted by nursing homes to prospective customers as offering efficient, cost-effective resolution for any disputes; however, seasoned attorneys also know that limiting disputes to arbitration is a means by which care-providers avoid trials by jury, publicly reported trials, and most court-based rules on procedure, rights to discovery and admissibility of evidence.
This month, a California appellate court (Second District, Division 6) ruled that residents of continuing care communities are protected because of California laws interpreted as prohibiting mandatory arbitration in "rental agreements." From the June 1, 2020 opinion in Harris v. University Village Thousand Oaks, CCRC, LLC:
Civil Code section 1953, subdivision (a), states, “Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] ... [¶] (4) [Their] procedural rights in litigation in any action involving [their] rights and obligations as a tenant.”
... The plain language of Civil Code sections 1940 and 1953 applies to the continuing care contracts here because the fees paid by appellants include payment for the right to live in a residence. Appellants are thus “persons who hire dwelling units.” (Civ. Code, § 1940, subd. (a).) Thus, the protections for “boarders” and “lodgers” (Civ. Code, § 1940, subd. (a)) apply to the “board, or lodging” portions of continuing care contracts (Health & Saf. Code, § 1771, subd. (m)(1)). Because the allegations in the complaint here include claimed violations of “rights and obligations as a tenant” (Civ. Code, § 1953, subd. (a)(4)), the arbitration agreements are void.
The court discussed the reasons legislatures enacted statutory laws to "protect the rights of tenants." It continued:
Elders entering continuing care contracts are entitled to the same protection as mobile home owners. Both groups face significant economic barriers to relocating. The Legislature recognizes that “elderly residents often ... expend a significant portion of their savings in order to purchase care in a continuing care retirement community,” and that there is a need “to protect the rights of the elderly.” (Health & Saf. Code, §§ 1770, subd. (b), 1776.)
The court acknowledged that CCRC residents also have some express statutory protections under state laws regulating CCRCs, but concluded that the lack of any bar on arbitration in that statutory scheme does not preclude protection for residents under landlord-tenant law.
Moreover, the continuing care contract statutes “shall be liberally construed for the protection of persons attempting to obtain or receiving continuing care.” (Health & Saf. Code, § 1775, subd. (e). To deny residents of a continuing care retirement community the protection given others who contract for lodging would be inconsistent with this express policy. The legislative purposes of both the landlord-tenant laws and the continuing care contract laws are best served by applying the arbitration prohibition to the housing component of continuing care contracts.
The full opinion is currently available on Westlaw at 2020 WL 2831923.
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.
Tuesday, May 26, 2020
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!
Wednesday, May 20, 2020
Under pressure from media and advocacy groups, Pennsylvania's Departments of Health and Human Services have recently published statistics about how many residents and employees at a large number of long-term care facilities have been diagnosed with Covid-19 and how many, if any, have died with the diagnosis. The spreadsheet is interesting, even with redaction of certain information if there is "less than 5" individuals with positive reports, as indicated by an asterisk. I'm linking here to a Spotlight PA article (written by Rebecca Moss for an investigative group that draws from the Pittsburgh Post/Gazette, the Philadelphia Inquirer and PennLive/Patriot-News) that provides part of the backstory on the state's decision to provide public information, along with an embedded link to the State's spreadsheet.
On the one hand, the data is sobering when you see the high numbers of deaths reported at some facilities. On the other hand, I'm intrigued by the number of facilities, including my own county's public nursing home (one of the few such facilities remaining in Pennsylvania) that report either zero or less than 5 total cases and no deaths.
The release of this kind of transparency will be important in the long run -- and help all of us better understand risks of infection in congregate settings, including but not limited to Covid-19. Additional questions focus focus on Pennsylvania's announced new "strategy" to promote universal testing of "all residents" and "all staff" and also to include "all types" of long-term care, regardless of regulatory designation. For more on that, see a WITF-Radio Smart Talk interview pointing to "potential holes" in Pennsylvania state reporting on long-term care Covid-19 infections.