Friday, October 2, 2020
The National Guardianship Association (NGA) has released a September 21, 2020 FAQ for guardians about the pandemic. Frequently Asked Questions by Guardians About the COVID-19 Pandemic.
Here are the top takeaways
• Contact with My Client or Loved One – Maintaining contact is essential, whether remotely or in person.
• Special Considerations for Nursing Home Residents – New federal guidance provides ways you can safely visit a resident in person. While there still may be some restrictions on in person visits, you have a responsibility to maintain contact and monitor well-being through remote access.
• Special Considerations for Residential Groups Settings and Hospitals – While there may be restrictions on in-person visits, you have a responsibility to maintain contact and monitor well-being through remote access.
• Protections and Services for My Client or Loved One in the Community – Maintain contact with your client or loved one in the community, and make sure he or she gets services and supports to maintain health and well-being.
• Access to Courts – Each state determines its own procedures during the pandemic. Courts have made many changes, including implementing or expanding remote hearings, and there may be changes in requirements for timelines, notices, and submission of reports.
• Protecting the Rights and Well-Being of My Client or Loved One – The rights of your client or loved one have not changed, but the pandemic makes it more difficult to exercise certain rights. Take actions to ensure the person receives fair health care treatment, facilities follow safety protocols, and support the individual during this difficult time.
• Protecting the Medical Decisions for My Client or Loved One – Work with health care
providers to ensure that the health care choices and values of your client or loved one are
• Protecting the Finances of My Client or Loved One – As guardian of the estate or conservator,
ensure that your client receives all COVID-19 and other benefits for which he or she is eligible; develop and implement a financial plan that is flexible enough to accommodate demands due to COVID-19; and manage investments and financial affairs with increased vigilance during the pandemic.
• Safety Precautions – Take steps to make sure you are not exposed to or transmitting illness, and to respond if your client or loved one is exposed to COVID-10, shows symptoms, or is hospitalized. Be alert to COVID-19 frauds or scams.
The 20 page FAQ with detailed explanations is available here.
October 2, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, 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)
Wednesday, September 23, 2020
Prohibiting visitors to SNFs has hopefully helped limit the spread of COVID. But what is the impact of those in isolation? According to the Washington Post article, Pandemic isolation has killed thousands of Alzheimer’s patients while families watch from afar, for some the impact has been profound. According to the Post's research, the article states that
Beyond the staggering U.S. deaths caused directly by the novel coronavirus, more than 134,200 people have died from Alzheimer’s and other forms of dementia since March. That is 13,200 more U.S. deaths caused by dementia than expected, compared with previous years, according to an analysis of federal data....
Overlooked amid America’s war against the coronavirus is this reality: People with dementia are dying not just from the virus but from the very strategy of isolation that’s supposed to protect them. In recent months, doctors have reported increased falls, pulmonary infections, depression and sudden frailty in patients who had been stable for years.
This is an important consideration as states begin to allow visits to residences of LTC facilities. Data is also showing increased deaths not specifically from COVID but "occur from causes such as hypertension or sepsis. But they are occurring at much higher levels than in the past, experts say, in part because of the pandemic’s indirect effects — hospitals being overrun or care being delayed."
The article highlights a number of individuals' stories and compares reopening of SNFs in other countries to that of the US. "Countries like the Netherlands have safely reopened their nursing homes without any increase in coronavirus cases by providing ample protective equipment, testing and rigorous protocols. ... But in the United States, little of the trillions in emergency funding has gone to nursing homes. For months, the Trump administration has talked of getting more testing into nursing homes, but the effort continues to be plagued with problems."
The article includes information about the methodology used for this study. This is a helpful article to use as a basis of class discussion. I'm assigning to my students!
September 23, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Tuesday, September 15, 2020
The Tampa Bay Times recently reported that the Florida Governor was authorizing visitation of residents in SNFs and ALFs in certain circumstances, DeSantis says yes, but will Florida nursing homes reopen to visitors? The order, which was effective on September 1, still requires that visitors maintain social distance. "The governor’s executive order... end[ed] the five-month ban on visitors at long-term care facilities that he imposed in an effort to protect the state’s most vulnerable residents from the coronavirus. The order will continue to allow visits from those deemed essential or compassionate caregivers, including in facilities that have had recent positive tests." The order is optional and the SNFs and ALFs can choose to not allow visitors.
The final report of the task force appointed by the Florida governor is available here.
Wednesday, July 22, 2020
Some SNFs and ALFs are now allowing visits for residents, with proper precautions, rather than an absolute ban on visits. Kaiser Health News ran an update, States Allow In-Person Nursing Home Visits As Families Charge Residents Die ‘Of Broken Hearts’.
For the most part, visitors are required to stay outside and meet relatives in gardens or on patios where they stay at least 6 feet apart, supervised by a staff member. Appointments are scheduled in advance and masks are mandated. Only one or two visitors are permitted at a time.
Before these get-togethers, visitors get temperature checks and answer screening questions to assess their health. Hugs or other physical contact are not allowed. If residents or staff at a facility develop new cases of COVID-19, visitation is not permitted.
Slightly over half of the states have have allowed these SNF visits, after he release of revised guidance from CMS, while slightly less than half of the states have allowed ALFs to follow the same path. This change is something of a balancing act, and the article notes this can change if COVID cases show up. Although the prohibition on visits was intended as protection,
[A]nguished families say loved ones [suffered]too much, mentally and physically, after nearly four months in isolation. Since nursing homes and assisted living centers closed to visitors in mid-March, under guidance from federal health authorities, older adults have been mostly confined to their rooms, with minimal human interaction.
A separate, but related issue, the right of visitation at the end of life, has not been evenly applied.
Although federal guidance says visitors should be permitted inside long-term care facilities at the end of life, this is not happening as often as it should, said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy group.
She wants family visitation policies to be mandatory, not optional. As it stands, facility administrators retain considerable discretion over when and whether to offer visits because states are issuing recommendations only.
Smetanka’s organization has also begun a campaign, Visitation Saves Lives, calling for one “essential support person” to be named for every nursing home or assisted living resident, not just those who are dying. This person should have the right to go into the facility as long as he or she wears personal protective equipment, follows infection control protocols and interacts only with his or her loved one.
The article also includes a map of states allowing visitation.
July 22, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
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.
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!
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)
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
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!
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)
Monday, May 18, 2020
In 2011, Joshua R. Wilkins, then a graduating student at Dickinson Law, won one of the top awards for a student writing competition sponsored by the National Academy of Elder Law Attorneys (NAELA). Joshua wrote about "Consumer Directed Negotiated Risk Agreements." His introduction began:
Negotiated risk in the assisted living context is a largely misunderstood concept. Opponents and proponents of the concept often fail to agree on fundamental concepts underlying negotiated risk. Similarly, states have enacted legislation authorizing or prohibiting what is described as negotiated risk – however those states have defined the concept so differently than other states that it is difficult to understand the concept as a cohesive whole. Negotiated risk can be broadly defined as the shifting of responsibility for certain consequences between the resident and the assisted living facility. Further concepts of definition vary greatly between lawyers and industry actors, and will be discussed later.
As a polestar, the general opinions regarding negotiated risk should be summarized. Opponents of the concept believe that negotiated risk is an illegitimate and unenforceable imposition upon the rights of assisted living residents by facilities attempting to contract away liability for resident injuries. Proponents color negotiated risk as a method for residents to exercise greater control over their living conditions and tailor the services supplied and guidelines imposed by the resident’s facility.
This paper proposes an alternative approach to negotiated risk that incorporates concerns of opponents of negotiated risk, and the selling points of proponents. A consumer directed negotiated risk agreement – one prepared by the resident’s independent attorney, would assist the resident in directing their standard of assisted living, while protecting their interests. A document of this type would require new state legislation authorizing the enforceability of risk shifting, and also delineating the boundaries that such an agreement could be used for. Additional benefits to this type of negotiated risk is that concerns over resident safety and welfare during the admissions process could be addressed without completely overhauling the market-based approach that is a hallmark of assisted living. Also, because residents seeking negotiated risk agreements would have to enlist the aid of an independent attorney, they would be more likely to benefit from advice regarding many other aspects of aging that they may not have otherwise obtained – including Medicaid and estate planning, education about possible exploitation, and review of pertinent resident admissions forms and contracts.
In proposing a consumer-driven approach, Joshua recognized critics' past reasons for opposing "negotiated risk" agreements, including the serious concern that facilities could mandate such "agreement" as an automatic wavier of all appropriate standards for care. That's not true choice. Attorney Eric Carlson, long-known for his advocacy for seniors, wrote an early article, Protecting Rights or Waiving Them? Why 'Negotiated Risk' Should be Removed from Assisted Living Law, Journal of Health Care Law & Policy (2007).
The specific risk that I'm thinking of these days is the risk that attends continued interaction with family members and friends for residents of assisted living or dementia care facilities. Coronavirus is just one of the risks that comes about through such interaction, and certainly the emerging details of facilities that fail to adopt or enforce sound infection control measures are, at best, disturbing even without this particular disease. Further, just because one resident is willing to "accept" risk coming from outside interactions, that doesn't mean the entire resident community would feel the same, and yet their own exposure to the risk increases with every fellow resident's outside contact. And staff members' safety is also impacted by third-party interactions.
Perhaps negotiation of the risk agreement provisions regarding community/family interactions should be made viable only where stronger safeguards can be developed against "casual" infection sources. We have standards for "green" architecture. Are there similar standards for "clean" architecture in senior living settings (and beyond)?
Tuesday, May 12, 2020
We aren't nearly out of this yet, and discussions are taking place about shield laws for businesses, especially for nursing homes. For example, a week or so ago, the Washington Post ran an article, White House and Congress clash over liability protections for businesses as firms cautiously weigh virus reopening plans. Bloomberg Law ran a story about the scope of shield laws for nursing homes, Coronavirus Liability Shields for Nursing Homes Only Go So Far (this gives the reader a good understanding of how the laws work, and what would not be covered).
The New York Times ran this story: Faced With 20,000 Dead, Care Homes Seek Shield From Lawsuits.Some facilities have sought and received protection under governors' executive orders. Others have sought legislative protection. As the Times article notes
At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.
What are the facilities arguing? This, according to the article "This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs."
Consider the other side of this coin, where advocacy folks note "At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, ... legal liability is the last safety net to keep facilities accountable.... They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation’s more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms."
The article reports that NY is one of the states with an immunity law. "New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years." There are some states with emergency orders of immunity, including "Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin." The Florida nursing home group has requested protection from Florida's governor; his decision is pending.
This is not an easy issue, nor one that will be quickly resolved (I don't think). Pay attention to this as it unfolds.