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)
Monday, January 18, 2021
There are so many stories being published about COVID and the impact on elders, I'm just going to include a few in this post.
I had mentioned a few weeks back that some states were circumventing the CDC recommendation on the second priority tier for vaccination. Florida is among those states, choosing to vaccinate those 65 and older. In case you weren't aware, Florida has a lot of folks 65 and older. And not enough vaccine doses for everyone. When the second batch of vaccines arrived, stories appeared regarding confusion and inefficiencies regarding signing up to receive the vaccine. (I and several of my friends can tell you first-hand accounts of this). As the New York Times described it, ‘It Became Sort of Lawless’: Florida Vaccine Rollout Turns Into a Free-for-All. It's not just Florida having this problem, as noted in Online Sign-Ups Complicate COVID-19 Vaccine Rollout For Older People.
We need to remember that not everyone has access to a computer or reliable internet-so are we leaving out an entire group in that 65 and over category eligible for the vaccine? With states left to administer the programs, Vaccination Disarray Leaves Seniors Confused About When They Can Get a Shot.
It seems to me that COVID news has been pushed off the news as the #1 story, replaced by the insurgency (rightfully so) but we shouldn't lose focus on the increasing spread of the pandemic. So we know things are going to get worse, before they get better---we haven't seen the surge from the Christmas holidays, but it's coming and very soon. Just look at what happened at Thanksgiving: COVID Kills Over 12,000 Nursing Home Residents in Weeks Surrounding Thanksgiving.
Finally, if you don't read any of these articles, read this one. COVID-19 And Congress Have Left The Senior Citizen Safety Net In Tatters explains the impact the pandemic and the economy is having on senior centers.
Monday, January 11, 2021
The American Bar Association Commission on Law & Aging has released its 2020 summary of guardianship legislation. The summary, Directions of Reform: 2020 Adult Guardianship Legislation Summary, American Bar Association Commission on Law and Aging is available .here.
The summary is divided into the following: pre-adjudication issues, multi-jurisdictional issues, guardian selection, guardian actions, fees, rights of the individual, capacity matters, guardian & fiduciary misconduct, and post-adjudication/monitoring matters. The summary includes a chart at the end for a quick reference. The link to the archives for prior year summaries is available here.
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.
Monday, December 28, 2020
The Tampa Bay Times reported recently on an uptick in the numbers of COVID deaths in Florida . Why are coronavirus deaths doubling in Florida’s nursing homes? references a recent report from AARP "that the COVID-19 death rate among Florida nursing home residents doubled in the three weeks around the Thanksgiving holiday, and infections continue to climb among the state’s most vulnerable residents. The death toll spike was so alarming that AARP decided to report on the data rather than wait for its scheduled monthly release on Jan. 10." One expert quoted for the article pointed to the state's failure to "to provide accurate, rapid-result testing of everyone entering elder-care facilities — staff, visitors, family caregivers and vendors." The AARP report with the Florida data is available here.
Friday, December 4, 2020
The Tampa Bay Times ran a profile of a local long term care facility that experienced a significant COVID outbreak last spring. Death at Freedom Square is an in-depth story about the people who live and work at Freedom Square and the spread of COVID within that facility. The article provides detailed reporting (In fact the TBT refers to this story as a "project"). The article is written in a way that tells the story of the people impacted, which makes it a compelling--- and sad---- read.
Nine months into the pandemic, the virus has killed more than 19,000 Floridians. About 40 percent of the deaths have been among senior care residents. In Pinellas County alone, more than 2 out of 3 coronavirus deaths are connected to nursing homes and assisted living centers.
Freedom Square, a 15-acre retirement complex built around a town square and a gazebo, was the early epicenter in Tampa Bay.
Of course, we all know that this is not the only facility that experienced a COVID outbreak, whether inside Florida or in other states. The human interest angle makes this a compelling read, but it also includes important information about the Florida responses and about the corporate structure for this facility.
The article is as gripping as it is saddening; the reporters use of the human interest angle helps remind us that we aren't talking about numbers---we are talking about people.
December 4, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, November 20, 2020
The ABA Commission on Law & Aging released recently this paper, WINGS Briefing Paper
Advancing Guardianship Reform and Promoting Less Restrictive . Here are some highlights from the report.
The Administration for Community Living (ACL) awarded a grant to the American Bar Association Commission on Law and Aging (ABA Commission) to establish, expand or enhance state Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS)…
This briefing paper discusses the ABA Commission’s WINGS Project, its results, and its potential for positive changes. Specifically, it (1) describes the challenges of adult guardianship reform and the rationale for creating WINGS; (2) presents project findings and conclusions about WINGS; (3) discusses the potential for applying the CIP model to the adult guardianship system; and (4) makes recommendations for next steps in federal policy.
The ACL funding was awarded with the goal of testing whether WINGS is an approach that can advance guardianship reform to:
(a) avoid unnecessary and overbroad guardianship when less restrictive options are available, promoting self-determination; and
(b) prevent, detect and address abuses in the guardianship system.
* * *
While the project WINGS, and indeed all state WINGS, have advanced adult guardianship reform, their modestly funded efforts are not enough to significantly improve outcomes for adults subject to, or potentially subject to, guardianship… Programs like WINGS should exist in every state under a national infrastructure with consistent, ongoing technical assistance and support… [T]he Commission on Law and Aging offers the following … Recommendations:
- Recommendations for Federal Policy
ACL, in coordination with other federal entities, should provide funding to support the following recommendations:
- Support WINGS Through Systems Change Grants
- Administer a five-year WINGS systems change grant initiative.
- Include programmatic requirements for monitoring guardians.
- Create a WINGS capacity-building/technical assistance entity.
- Support local or regional WINGS.
- Take Steps Toward Establishment of a Guardianship Court Improvement Program
Plan for establishment and implementation of a Guardianship Court Improvement Program. Pilot the program and support a capacity-building center.
• Secure federal legislation with appropriations to implement and sustain a Guardianship Court Improvement Program.
The full report is available 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)
Tuesday, November 17, 2020
It's hard to keep track of all the articles coming out, most of which are about COVID and SNFs. There have been so many recently, I decided to just list them here.
Judge says care home residents in England are legally allowed visitors (Nov. 3, 2020) (Thanks to my dear friend Professor Feeley for sending this to me)
40 Dead, Now 40 Laid Off: Inside a Nursing Home in Crisis (Oct. 29, 2020).
and finally, but maybe most significantly, this obituary, Carter Williams, Who Unshackled Nursing Home Residents, Dies at 97 (Oct. 5, 2020). Thank you Ms. Williams!
With the COVID numbers skyrocketing, I expect we will see more of these stories-and restrictions on visitation that have been previously lifted, are likely going to be imposed again.
November 17, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, November 2, 2020
The National Center for Law & Elder Rights is offering a free webinar on November 10, 2020 at 2 eastern on Representing a Person with a Guardian. Here's the info about the webinar
Attorneys, including legal services attorneys, should be open to representing individuals under guardianship. When representing a person with a guardian, an attorney may need to take extra steps to ensure their client has the right to counsel of their choice, and be a strong advocate to ensure that the proceedings are treated with dignity and the client’s due process rights are upheld. By using procedural and evidentiary tools—including alternatives to guardianship—advocates can increase clients’ independence and autonomy and restore their civil rights.
In this training, presenters will share:
Considerations for representing a legally incapacitated client;
Strategies for advocating for clients’ rights;
Standards and burdens for modifying or terminating guardianship; and
Information on requesting reasonable accommodations.
To register for the webinar, click here
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)