Thursday, June 3, 2021
With lockdowns being lifted in commercial arenas, I'm once again hearing from residents in Continuing Care Retirement Communities (CCRCs), also sometimes called Life Plan Communities, as well as other similar senior living settings. The most frequently raised concern is "how can management of my community make major changes in services and amenities without asking us if we agree to a new contract?" Sometimes I am able to recommend local legal counsel for the callers.
As a matter of theory, there's a traditional "law-based" answer to this question, with state-specific tweaks. And then there is what happens all too often in real life.
Generally speaking, the law provides that unilateral attempts by one party to make significant changes in the parties' duties under a contract are not legally effective. Here's one state Supreme Court's typical statement of the rule of law (written in the context of considering an employer's unilateral attempt to change an employment contract):
The cases dealing with employment contracts are merely part of the general rule that recognizes no difference between an express and an implied contract.... As a result, to effectively modify a contract, whether implied-in-fact or express, there must be: (1) an offer to modify the contract, (2) assent to or acceptance of that offer, and (3) consideration."
Demasse v. ITT Corp., 984 P.2d 1138, 1144 (Az. 1999). As my law students know, "consideration" is a legal term of art, and generally means a "bargained for exchange." In the context of modification of existing agreements, this often involves new financial terms or mutual concessions in the parties' respective duties.
But, the real-life situation is that the party with the greater bargaining power simply ignores the bargaining process altogether. In employment contexts, that's the employer. They treat their notice of major changes as "the new agreement" simply because no one objected. That's not how the rule of law is supposed to work, but it does, all too often. Indeed, I will confess that the very reason I started teaching Contract law was my growing familiarity with disputes in senior living scenarios that made me wonder if there was something about contract law I'd missed back in my own days as a law student. There wasn't (although the full explanation would require a law review article) -- but the world keeps spinning along with the more powerful party in many commercial contexts able to avoid the contract because they are "in charge."
Residents don't, however, have to put up with this. Resident groups in individual CCRCs and those living in states where there are regional organizations have learned to flex their considerable muscle, both in negotiations with management and with state regulators or legislators. I'm also hearing from more attorneys who are representing residents in negotiations, or when necessary, in arbitrations or on lawsuits alleging breaches of contract and fiduciary duties. Plus, I'm hearing from more states officials who are asking good questions.
It not a secret that I like CCRCs and I like them a lot. I've visited CCRCs throughout the U.S. and they tend to be vital examples of senior living, offering community engagement, social networks, friendly-settings, caring service providers, and the reassurance of assistance if needed. Many forms of senior living options are struggling with the impact of the pandemic, with enhanced pressures on facilities to balance their budgets. This is probably triggering a new upswing in attempts to make unilateral changes.
I have worried, long before the pandemic, that an episodic history of paternalistic or peremptory changes by management in CCRCs can undermine public confidence in this format as a viable alternative for seniors. CCRCs have their highest value for consumers when residents are making the transition before becoming too frail to appreciated the amenities and services. New residents may be unlikely to "invest" in CCRCs if they lack confidence that promised services will be available when needed.
June 3, 2021 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, May 31, 2021
Starting off the month of June with another roundup of articles about nursing homes.
First, from the New York Times at the end of April, Cuomo Aides Spent Months Hiding Nursing Home Death Toll.
Then, also from late April, this article from Politico, Will the Nursing Home of the Future be an Actual Home?
Then, a recent report from the GAO, COVID-19 in Nursing Homes: Most Homes Had Multiple Outbreaks and Weeks of Sustained Transmission from May 2020 through January 2021 (the link takes you to the page with links for highlights, the full report, fast facts, and a podcast).
On another topic related to SNFs, as we approach hurricane season, this important report about facilities in Florida with emergency power backups. See, generators by Florida county for ALFs and SNFs.
Friday, May 21, 2021
Long-Term Care in America: Americans Want to Age at Home covers recent poll results about long term care.
In the wake of a pandemic that was especially devastating for nursing homes, the vast majority of Americans want to age at home and want government action to help them do so, according to a new study from The Associated Press-NORC Center for Public Affairs Research.
Even as concerns about the safety of nursing homes decline as more and more COVID-19 vaccines are administered, 88% of Americans would prefer to receive any ongoing living assistance they need as they age at home or with loved ones. Just 12% want to receive care in a senior community or nursing home. With that objective of aging in place in mind, more than 6 in 10 support a variety of policies that would facilitate aging at home including a government-administered long-term care insurance program, similar to Medicare.
Here are three highlights from the poll
Three Things You Should Know About The Long Term Care Poll on Aging at Home
Among Americans Adults:
1) 88% would prefer to receive any ongoing living assistance they need as they age at
home or in a loved one’s home
2) 51% think Medicare should have a large responsibility for paying for ongoing living
assistance, and 49% expect to rely on it to pay for care they need as they age.
3) 53% have already received health care at home during the pandemic through telehealth
The full report is available here.
Thanks to Morris Klein for sending me the article.
Monday, May 17, 2021
The New York Times published an article, In Reversal, Retirements Increased During the Pandemic. "After decades in which it decreased, the retirement rate rose during the pandemic, according to the latest government data. This makes retirement one exception to the many ways that the pandemic accelerated pre-existing trends .... " The article examines the explanations for this trend, such as losing employment, an employer going out of business, and the higher risk of illness for those employees who are older. The article predicts that the trend won't continue. "Even though the retirement rate increased during the pandemic, it won’t necessarily rise further. It’s worth emphasizing that the retirement rate rose around the start of the pandemic but did not continue to do so. After the initial spike in joblessness at the start of the pandemic, the share of those 55 to 64 who were out of work but not retired fell rapidly without a further rise in retirement."
Thursday, March 18, 2021
California has released its Master Plan FOR Aging. Here's the rationale for having a master plan:
Aging is changing and it’s changing California. California’s over-6o population is projected to diversify and grow faster than any other age group. By 2030, 10.8 million Californians will be an older adult, making up one-quarter of the state’s population.
The Master Plan for Aging outlines five bold goals and twenty-three strategies to build a California for All Ages by 2030. It also includes a Data Dashboard on Aging to measure our progress and a Local Playbook to drive partnerships that help us meet these goals together.
This is not a plan simply for today’s older adults. Instead, the Master Plan is a blueprint for aging across the lifespan. The Master Plan calls on all California communities to build a California for All Ages: for older Californians currently living through the many different stages of the second half of life; for younger generations who can expect to live longer lives than their elders; for communities of all ages – family, friends, neighbors, coworkers, and caregivers – surrounding older adults. As Californians, we can create communities where people of all ages and abilities are engaged, valued, and afforded equitable opportunities to thrive as we age, how and where we choose.
The five goals address health, housing, equity and inclusion, affordable aging, and caregiving. The plan is available here.
PHI issued a report regarding the direct care workers and the California Master Plan For Aging. Quality Jobs Are Essential: California’s Direct Care Workforce and the Master Plan for Aging
[P]rovides a detailed overview of the state’s direct care workforce and examines how California’s Master Plan for Aging can improve jobs for this rapidly growing workforce. It describes how the Master Plan supports this workforce, highlights where it incorporated the LTSS Subcommittee’s recommendations, and proposes where and how the Master Plan can be strengthened. This report also includes various stories from direct care workers in the state.
The report is available here for download.
Monday, February 22, 2021
Despite projects to vaccinate those elders who are homebound or lack internet access, we are still lagging behind on reaching them, according to a story today in Kaiser Health News. Countless Homebound Patients Still Wait for Covid Vaccine Despite Seniors’ Priority starts with the good news-recognizing the unique outreach efforts by hospitals, health systems, and paramedics, for example. These folks are home are highly vulnerable. Described by one expert in the article as a "hidden group", they are at great risk, "[b]y virtue of their age and medical status, these seniors are at extremely high risk of becoming seriously ill and dying if they get covid-19. Yet, unlike similarly frail nursing home patients, they haven’t been recognized as a priority group for vaccines, and the Centers for Disease Control and Prevention only recently offered guidance on serving them." The article notes that those professionals whoa are regularly in contact with them are not those with access to vaccines. Medicare's reimbursement rates for time-consuming house calls doesn't allow the health care professionals to recoup their costs, notes the article. Not only that, knowing the storage requirements for the vaccines doesn't mean a health care professional can just hop into their car and drive around with the vials in a cooler.
So this brings us to this story, a new hero for all of us! Last week in the New York Times, Woman, 90, Walked Six Miles in the Snow for a Vaccine
explained how after that recent snow storm, driving was out for her, but given all her previous failed efforts to get the vaccine, she wasn't going to miss this opportunity.
Where's Rosie the Riveter when we need her?? Surely "we can do it" or at least do better?
Monday, February 15, 2021
Read these three articles, to get a full picture of what happened. First, the AP story: AP: Over 9,000 virus patients sent into NY nursing homes. Next, the CNN story: New York governor's top aide apologizes and says administration 'froze' after inquiries on Covid-19 deaths at long-term care facilities. Finally, Politico's story: Top Republicans call for Cuomo's ouster following nursing home revelation.
Thursday, February 4, 2021
A couple of recent articles about NY SNFs will make you stop and think.... hmmmm.. First, Politico noted a recent NY AG report New York undercounted nursing home deaths by as much 50 percent, report finds.. Nursing Home Response to COVID-19 Pandemic report includes preliminary findings
OAG’s preliminary findings are:
» A larger number of nursing home residents died from COVID-19 than DOH data reflected.
» Lack of compliance with infection control protocols put residents at increased risk of harm during the COVID-19 pandemic in some facilities.
» Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings4 had higher COVID-19 fatality rates than facilities with higher CMS Staffing ratings.
» Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm during the COVID-19 pandemic in some facilities.
» Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm in some facilities.
» The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE.
» Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and,
» Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.
Then consider this article in the Washington Post. Andrew Cuomo’s bad ‘who cares’ answer on coronavirus nursing home data
Facing a brutal report from his own party’s state attorney general that said the state had undercounted nursing home deaths from the virus, Cuomo essentially argued that it’s neither here nor there.
“Look, whether a person died in a hospital or died in a nursing home, it’s — the people died,” Cuomo said. “People died. ‘I was in a hospital, I got transferred to a nursing home, and my father died.' ‘My father was in a nursing home, got transferred to a hospital, my father died.’ People died.”
It does matter. As the article notes "there are major and very valid questions about whether nursing home policies led to unnecessary ones. To the extent that more deaths occurred in or came from that setting, it allows us to evaluate how significant that problem was and how much corrective action is needed."
Sunday, January 31, 2021
The articles about the rollout are varied, but many of them focus on the issues getting elders vaccinated. So fwiw, here's a round up of some recent ones. Draw what conclusions that you will.
Some states could vaccinate their seniors twice as fast as others, CNN analysis finds (scroll down for article).
Friday, January 29, 2021
The ABA Commission on Law and Aging has published vol. 42, Issue 3 (Jan.-Feb.2021), its current issue of BIOFOCAL. The issue contains several articles, including a couple on Social Security Rep Payees, with the lead article, How Does Social Security Select Representative Payees for Adults? Results of an Independent Research Study
Almost four million older adults and adults with disabilities have representative payees appointed by the Social Security Administration (SSA) to manage their Social Security or SSI payments. How does SSA determine if a payee is needed? How do SSA staff select a payee? How do they choose an individual versus an organizational payee? What are the considerations in long-term care residential facilities serving as the payee? What about guardians serving as payee? How and to what extent does SSA maintain consistency in payee determinations?
In 2018, the Social Security Advisory Board (SSAB) charged researchers at Virginia Tech and the ABA Commission on Law and Aging to conduct an independent study focusing on these compelling questions. The study team addressed SSA processes for selection of payees for adults. The underlying assumption was that a better understanding of selection practices ultimately could lead to process improvements, as well as a reduction in the potential for misuse and abuse of beneficiary funds while maintaining beneficiary rights.
A pdf of the full issue is available 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.
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)