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.
Monday, December 7, 2020
JAMA Internal Medicine published the results of a recent study, Financial Presentation of Alzheimer Disease and Related Dementias.
Here are the key points from the study:
Question Are Alzheimer disease and related dementias (ADRD) associated with adverse financial outcomes in the years before and after diagnosis?
Findings In this cohort study of 81 364 Medicare beneficiaries living in single-person households, those with ADRD were more likely to miss bill payments up to 6 years prior to diagnosis and started to develop subprime credit scores 2.5 years prior to diagnosis compared with those never diagnosed. These negative financial outcomes persisted after ADRD diagnosis, accounted for 10% to 15% of missed payments in our sample, and were more prevalent in census tracts with less college education.
Meaning Alzheimer disease and related dementias were associated with adverse financial events starting years prior to clinical diagnosis.
The full article 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)
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)
Thursday, November 5, 2020
I think we can all recite the COVID #s from the spring vis a vis SNFs. Is the infection control process enough? Is more needed? The Washington Post recently published this story, As pandemic raged and thousands died, government regulators cleared most nursing homes of infection-control violations.
At the outset of a looming pandemic, just weeks after the first known coronavirus outbreak on U.S. soil, the woman responsible for helping to protect 1.3 million residents in America’s nursing homes laid out an urgent strategy to slow the spread of infection.
In the suburbs of Seattle, federal inspectors had found the Life Care Center of Kirkland failed to properly care for ailing patients or alert authorities to a growing number of respiratory infections. At least 146 other nursing homes across the country had confirmed coronavirus cases in late March when Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, vowed to help “keep what happened in Kirkland from happening again.”
And yet, we know what happened. The plan was for complete "a series of newly strengthened inspections to ensure 15,400 Medicare-certified nursing homes were heeding long-standing regulations meant to prevent the spread of communicable diseases. It was another key component of a national effort, launched in early March, to shore up safety protocols for the country’s most fragile residents during an unprecedented health emergency." With that in mind, the Washington Post conducted an investigation and found that "during the first six months of the crisis [the inspectors] cleared nearly 8 in 10 nursing homes of any infection-control violations ...." The article notes that these facilities included those that had COVID outbreaks before the inspections and others that had outbreaks after inspections concluded there were no violations. We can all realize that with COVID, not every transmission can be prevented, but the article notes that "the number of homes flagged for infection-control violations remained about the same as last year."
The article gives examples of violations and fines discusses actions taken by CMS, the lack of consistency, the imposition of small fines, and gaps in communication, postponement of collecting fines and more. This is a lengthy detailed article that is important to read to order to have some understanding of how COVID was able to rampage through SNFS.
The Executive Director of the Long Term Care Coalition observed "“Nursing home residents were never more vulnerable in our lifetime, if ever... I don’t like to overuse the expression, but we literally abandoned them when the need for monitoring was the highest, when the need for quality assurance was the highest. They needed that oversight more than ever.”
And let's remember, the numbers of cases are spiking again. Have we learned any lessons from the spring?
Friday, October 9, 2020
As many of our regular readers know, I grew up in Phoenix, Arizona. One of the developments I have followed over the years is the number of homeless residents of Phoenix. I'm a cyclist in my spare time and one of my regular downtown bike routes in Phoenix takes me past an ever-growing encampment. In addition, a large park near my parents' home now serves as a daytime gathering spot for many. In the scorching heat of the summer, and the desert cold of the winter, there are more and more people without adequate shelter. The New York Times recently pointed out that in contrast to historical statistics suggesting that nationwide, "elderly" persons make up a small percentage of the homeless population, in the last few years we are seeing a surge among older adults. See Elderly and Homeless: America's Next Housing Crisis, a feature article published on September 30, 2020, that, in part, profiles the issues in Arizona.
So, it was with great interest that I read a report on a federal appellate decision, limiting the ability of municipalities to use criminal laws to penalize individuals, in an attempt to discourage or remove people who are living on the streets. The report is by one of Dickinson Law's third year law students, Jacqueline Stryker. She writes in part:
"The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance. In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the 9th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter. The Court concluded that it does. A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. "
Ms. Stryker observes in her conclusion, "Whether the decision of the Ninth Circuit in Martin will gain traction a local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen."
For more of Ms. Stryker's timely, concise case analysis, see: Municipal Efforts to Combat Homelessness.
Wednesday, October 7, 2020
Advancing Action, 2020: A State Scorecard on Long-Term Services and Supports for Older Adults, People with Physical Disabilities, and Family Caregivers ranks individual states on the available services, etc. Here's the introduction on this latest scorecard:
This report is a compilation of state data and analysis that is based on a vision of a high-performing system of long-term services and supports (LTSS). By using reliable, consistent, available data, it is designed to spark conversations that can result in actionable solutions at the local, state, and national levels—solutions that help older adults, people with physical disabilities, and their family caregivers live their best lives possible. Making that happen is the responsibility of both the public and private sectors, with advocates playing crucial roles. And consumers’ choices and actions ultimately affect a state’s LTSS system as well.
Of course, COVID changes everything and the introduction addresses that impact on the Scorecard. The purpose of the scorecard
The 2020 Long-Term Services and Supports (LTSS) State Scorecard aims to empower state and federal policy makers, the private sector, and consumers with information they need to do the following:
- Effectively assess their state’s performance across multiple dimensions and indicators.
- Learn from other states.
- Improve the lives of older adults, people with disabilities, and their families.
The Scorecard is guided by the belief that, in order to meaningfully manage and improve performance, one must measure it. Unlike many other rankings that focus on a particular aspect of LTSS system performance, the Scorecard compares state LTSS systems across multiple dimensions of performance, reflecting the importance and interconnectedness each has on the overall LTSS system. The goal is to spark conversations, galvanize broad-based coalitions, and focus stakeholders’ attention on the factors that most directly impact consumers and their families.
Tuesday, October 6, 2020
According to AARP, The United States is an Aging Nation.
Here are the population projections they offer
1. The National Median Age is 38.2 Years Old
2. The Number of Older Adults Will Soon Outnumber Children
3. The 65+ Population Increased During the Past Decade
4. The Population of Older Adults is Getting Larger — and Older
Each of this incudes an interactive graphic that links to a separate page that provides more info about the statistic. The landing page for the projections is here.
Monday, October 5, 2020
The GAO has released a new report, RETIREMENT SECURITY: Older Women Report Facing a Financially Uncertain Future. Here are the highlights:
In all 14 focus groups GAO held with older women, women described some level of anxiety about financial security in retirement. Many expressed concerns about the future of Social Security and Medicare benefits, and the costs of health care and housing. Women in the groups also cited a range of experiences that hindered their retirement security, such as divorce or leaving the workforce before they planned to (see fig.). Women in all 14 focus groups said their lack of personal finance education negatively affected their ability to plan for retirement. Many shared ideas about personal finance education including the view that it should be incorporated into school curriculum starting in kindergarten and continuing through college, and should be available through all phases of life.
Individual women's financial security is also linked to their household where resources may be shared among household members. According to the 2016 Survey of Consumer Finances, among households with older women, about 23 percent of those with white respondents and 40 percent of those with African American respondents fell short of a measure of retirement confidence, indicating their income was not sufficient to maintain their standard of living. The likelihood of a household reporting high retirement confidence rose in certain cases. For example among households of similar wealth, those with greater liquidity in their portfolio and those with defined benefit plan income were more likely to report high retirement confidence.
The full report is available here.
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)
Sunday, July 19, 2020
When I read the following New York Times article, all I could think of was the Clash song, "Should I Stay or Should I Go? The article, You’re a Senior. How Do You Calculate Coronavirus Risk Right Now? focuses on the decision to stay home or to venture out into the world (with precautions of course) when you are in a high risk group (or any group for that matter but this is the elderlawprof blog!)
"Early on in the pandemic, most public health officials warned older adults to simply stay at home, except to buy food or medicine or exercise outdoors apart from others. Now, with states and cities reopening (and some re-closing) at varying paces, the calculations grow steadily more complicated."
What to do? What to do? One study from MIT economists "in a recent paper suggesting age-targeted lockdowns ... proposed protecting people over 65 by having them isolate for an estimated 18 months until a vaccine becomes available; younger people, facing less health risk, would return to work." As the article notes, that "approach also assumes that older adults’ only interest lies in not dying." Well, that is a big one, but still.....
There's so much info out there, what is one to do? The article offers a couple of insights
Geography matters too. Older people in New Hampshire or Maine — where new cases were falling last week — may reasonably opt for less restrictive behavior than those in Florida and Arizona, where Covid has been surging. Pay attention to which counties are seeing cases rise and which are doing a good job at observing guidelines.)
Monday, July 6, 2020
Last month I made my first roundtrip, domestic airline flight following 90+ days of lockdown and gradual easing of travel restrictions. I scheduled this quick trip cautiously, for family-related reasons, and with a goal of returning to my Pennsylvania home well in advance of any return to work with students in my law school. I'm not a timid flyer, but I did my best to try to minimize risk factors, including selection of an airline that advertised "vacant" middle seats, masking requirements, and updated standards for cleaning the airplane and social distancing. I am writing here because an individual on the return leg of my flight in my same row (but across the aisle) became seriously ill during the flight. This post is about my growing concern about what it means to respond to the potential for a communicable illness while traveling, especially but not exclusively in the time of COVID-19.
When the individual became ill (seeming to lose consciousness and vomiting-- more ill than what I associate with "mere" air sickness), the flight attendants responded to his needs with plastic bags and napkins. On the positive side, they kept everything low key and talked to the individual softly. I think it was another, closer passenger who summoned them and everyone tried to respect the privacy of the individual. Eventually, the ill passenger was moved to the rear of the plane. Shortly after that, all passengers were informed the seatbelt signs had been activated and everyone should stay in their seats for the remainder of the flight. There were no further announcements and nothing said about the ill passenger specifically. When the flight arrived at its regular destination, I did not see the individual leave the plane.
What does it mean for any state health department or CDC program official to say they will follow a plan for contact tracing? Each step of the process needs clarity, including that first step of identifying the ill traveler and other potentially affected travelers, right?
I received a traditional customer satisfaction "survey" form from the airline the morning of my return via email, asking me to describe the flight. This made me realize that I should be talking directly to the airline about this specific incident. Was the individual in question experiencing a communicable illness, especially COVID-19? I made a short, emailed report to the airline less than 12 hours after the end of the flight, and made a follow up inquiry and a second report by telephone and email. The most I have learned is that the airline is "researching" whether there is any record of the incident or illness on board that flight. Taking a week (or more?) to determine whether the crew made a report is not reassuring. At a minimum, shouldn't there be a record of that plane being taken out of service for some period of time for cleaning?
The Pennsylvania governor, for reasons unrelated to my account above, has recently asked all residents returning from the departure state in question (and certain other states experiencing surges in COVID-19) to self-quarantine for 14 days. That makes sense. Even though I had been exceptionally careful during my time out-of-state, the airline incident was a stark reminder that travel, even with the lessons learned during the last several months, involves factors that are completly outside the control of any of the passengers. "Being careful" on an individual basis may not be enough and when something happens that involves risk to others, we need clear lines for any investigation and communication.
Everyday we are learning new things about how to deal with communicable illnesses, including ones that may be life-threatening. I think what I'm realizing is that as individuals and consumers, we cannot be passive about these steps.
I contacted the CDC and was told there is a process for "contact investigations" by the CDC, but that triggering such an investigation cannot be done easily, at least not if you are a mere passenger. They recommended I contact the health department in the state where my plane landed. Here is what CDC sent me by email: https://www.cdc.gov/quarantine/contact-investigation.html
Weaknesses clearly exist in the protocols. The airline and CDC have been quick to warn me that they cannot give any information about the "patient." I'm not asking to know the patient's identity in any way. But shouldn't any potentially affected traveler be entitled to know:
a. Whether there was a report of the illness made by the crew to the airline and/or other authorities.
b. The result of any investigation, especially in terms of public health implications.
c. Whether a specific, communicable illness or disease was identified.
d. Whether there are specific steps that should be taken by passengers in light of the history.
Shouldn't the CDC want to know whether others on that plane have experienced similar symptoms? (Thankfully, I have not, but although I was in the line of sight of his seat, there were others between us, and in front and behind him, who were much closer.) I have realized that short of contacting every passenger on the plane, it might be difficult for some airlines to help with "contact" tracing. They may be relying on a manifest rather than a chart for assigned seats. Certainly, no one asked me or other, closer passengers on the flight for contact information. I hope the ill individual has recovered fully and quickly, and that for his sake this was a temporary illness. I'm being calm, even as I'm frustrated. I'm frustrated not just for myself, but for the larger public. The passengers on this plane included all ages, including older individuals. Earlier during my trip, I overheard one older traveler say to another, "I just want to live long enough to see my grandchildren again."
Thursday, July 2, 2020
Hard to believe we are scheduling for January 2021, isn't it! Here's the scheduled speakers and topics for the co-hosted program during the AALS Annual Meeting in San Francisco on "Intersectionality, Aging and the Law:"
Alex Boni-Saenz (Chicago-Kent), Age Diversity
Naomi Cahn (GW) & Nina Kohn (Syracuse), How Law and Sex Shape What It Means to Be Old
Veronica C. Gonzales-Zamora (UNM), The Triple Threat: Millenium Women of Color
Jessica Mantel (Houston), Allocating Scarce Medical Resources During a Pandemic: Rationing Based on Age is not the Same as Rationing Based on Disability
Katherine Pearson (PSU-Dickinson), Pandemic Protections: Where is the Line in Patient Autonomy?
Tara Sklar (U Arizona), Frailty, Vulnerability, and Big Data
Ruqaiijah Yearby (SLU), The Dark (Trinity): How Structural Discrimination, Wealth Inequalities, and Lack of Access to Health Care Cause Health Disparities for Elderly Women of Color
July 2, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International, Programs/CLEs, Statistics | Permalink | Comments (0)
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)
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
In senior living, one of the more interesting phenomena are so-called "naturally occurring retirement communities," or NORCs. This label, or a related "village" label, is often used to describe residential settings where a large proportion of the population is now over the age of 60, not by design or plan. The citizenry has continued to live there as they age, and has attracted complementary local service industries, such as wellness programs, home health visitors, day care options, and adapted transportation modes. Some of the early, well documented and often studied NORCc include Beacon Hill in Boston, and Upper Park Heights in northwestern Baltimore. Residents in the area often take great pride in the trend, emphasizing it as a positive way to age in place, drawing upon appropriates supports that help to maintain individual dignity.
But what happens when a new, highly infectious disease also finds its way into a NORC? As is too often true in law, the answer is probably, "It depends."
One such place is Co-op City in the Bronx. According to some reports it is the largest residential development in the U.S., with 43,000 residents in 36 towers and seven townhouse clusters, plus larges grass fields, walking paths, a community garden, nearby schools, shopping, and its own Little League baseball field. Development of the planned, cooperative housing projects that comprise Co-Op City occurred from approximately 1966 to 1976. The 2000 census showed that 60.5% of the population of Co-op City was African American, about 27.7% were Hispanic or Latino and about 8.6% were white. A corporation is in charge of management.
Co-Op City has also become an unplanned NORC, with one of the largest populations of elderly in the country. As early as 2007, public sources estimated that over 8,300 of the residents were over the age of 60. See also 2016 statistics that indicate that 21% of the population in District 10 (where Co-Op City is located) is over age 65, in comparison to New York City's overall age 65+ population of 16%. Co-Op City is recognized as a NORC-JASA community for age-related programming and services.
In 2020, the Bronx generally and Co-Op City especially appear to have been hard hit by the corona virus. Public media sources, reporting here and here, use statistics released by city health officials, to reveal "that the virus has killed at least 155 people in the zip code" that covers Co-Op City. "That's roughly 1 in every 282 residents." (Hmm. I'm not sure about the numerators and denominators used in these articles).
It may be tempting for some to dismiss negative statistics in any single statistical areas as due to a single factor, such as vulnerability tied to advanced age. That can be dangerous as discussed in the article by Barbara Pfeffer Billauer, linked in my May 26 post.
Instead, take the time to consider other factors that may point to the deep risk of infectious disease in certain congregate settings and that appear to exist in Co-Op City:
- a geographic community with physical constraints that mean residents depend on public transit -- at a higher risk -- for much of their connection to the working world, including non-family caregivers and service providers;
- confined locations to do necessary shopping for food and pharmacy supplies;
- comparatively tightly packed living or working spaces;
- and, significantly, common ingress/egress for buildings via limited numbers of hallways and tall towers of elevators for all such comings and goings.
In this instance, a NORC, usually considered a better space for aging in place, arguably may have become a large-scale version of a nursing home, with abundant opportunities for building-to-building, apartment-to-apartment transmission of infections. At a minimum, perhaps this is another reason to think more aggressively about public health strategies and health policy priorities in light of the lessons we are learning from the Covid-19 pandemic.
Special thanks to my Dickinson Law colleague, Professor Sarah Williams, for alerting me to what is happening with coronavirus in Co-Op City.
Tuesday, May 26, 2020
George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona." This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed. She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years. Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."
It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.
At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.”
Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."
Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.
She questions the statistical basis for some governments' decisions to impose mandatory isolation:
The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.
But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?
She is provocative. She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.
For more, read the full blog post linked above. For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!
May 26, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Housing, International, Statistics | Permalink | Comments (0)