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)
Sunday, May 24, 2020
Is What CMS Doesn't Say as Important as What CMS Does Say in Recommendations for "Reopening" Nursing Homes?
On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19."
In some ways, nursing homes may be breathing a sigh of relief as the memo does not use any mandatory language directed at the operators. In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases. The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. What does that mean? You should be able to test everyone before you ease visiting restrictions, but you can choose not to do so? On page 4, CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan. The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines, although with no hard numbers for such oversight suggested.
CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases."
Significantly, there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination. That seems to me, at least, especially short-sighted.
May 24, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, May 21, 2020
NYT: Homes with Significant Number of Black and Latino Residents Twice as Likely to Be Hit by Coronavirus
The New York Times offers deep analysis of the impact of race on coronavirus infection rates in nursing homes. A lot to unpack, starting here:
The coronavirus pandemic has devastated the nation's nursing homes, sickening staff members, ravaging residents and contributing to at least 20 percent of the nation's Covid-19 death toll. The impact has been felt in cities and suburbs, in large facilities and small, in poorly rated homes and in those with stellar marks.
But Covid-19 has been particularly virulent toward African-Americans and Latinos: Nursing homes where those groups make up a significant portion of the residents -- no matter their location, no matter their size, no matter their government rating -- have been twice as likely to get hit by the coronavirus as those where the population is overwhelmingly white.
For more issue spotting, read The Striking Racial Divide in How Covid-19 Has Hit Nursing Homes.
Wednesday, May 20, 2020
Under pressure from media and advocacy groups, Pennsylvania's Departments of Health and Human Services have recently published statistics about how many residents and employees at a large number of long-term care facilities have been diagnosed with Covid-19 and how many, if any, have died with the diagnosis. The spreadsheet is interesting, even with redaction of certain information if there is "less than 5" individuals with positive reports, as indicated by an asterisk. I'm linking here to a Spotlight PA article (written by Rebecca Moss for an investigative group that draws from the Pittsburgh Post/Gazette, the Philadelphia Inquirer and PennLive/Patriot-News) that provides part of the backstory on the state's decision to provide public information, along with an embedded link to the State's spreadsheet.
On the one hand, the data is sobering when you see the high numbers of deaths reported at some facilities. On the other hand, I'm intrigued by the number of facilities, including my own county's public nursing home (one of the few such facilities remaining in Pennsylvania) that report either zero or less than 5 total cases and no deaths.
The release of this kind of transparency will be important in the long run -- and help all of us better understand risks of infection in congregate settings, including but not limited to Covid-19. Additional questions focus focus on Pennsylvania's announced new "strategy" to promote universal testing of "all residents" and "all staff" and also to include "all types" of long-term care, regardless of regulatory designation. For more on that, see a WITF-Radio Smart Talk interview pointing to "potential holes" in Pennsylvania state reporting on long-term care Covid-19 infections.
Saturday, May 16, 2020
I've written about Pennsylvania's ongoing dispute between its Department of Health and some County Coroners regarding responsibilities for reporting Covid-19 related deaths and how to better assure accuracy of data. It seems possible to me that part of the controversy in Pennsylvania may reflect the fact that the County Coroners are elected officials, and may not identify with the political views of the Governor. Some Republicans vs. Democrat. In contrast, disputes between Florida's 25 medical examiner district offices and the state's Department of Health are emerging news.
I don't follow politics in Florida closely enough to know whether party-politics are involved, but there does appear to be concern from the regional officials that the State is inclined to discount Covid-19 related deaths in Florida, perhaps in an attempt to protect tourism into the state. Should a "tourist" that dies in Florida be counted as a death in Florida? From Florida Today, this opening account of one tourist death:
When a 66-year-old man was found dying on an Amtrak train passing through Okeechobee County on April 5, there was nothing to indicate that he had COVID-19. It was the local medical examiner's office that pieced it together.
The examiner discovered the man had recently arrived with a fever at New Jersey's Newark Liberty International Airport from the United Kingdom. The Centers for Disease Control stopped him from boarding a flight to Florida and sent him to a local hospital for a coronavirus test. Released before the results came back, he got on a southbound train, went into cardiac arrest while traversing the Sunshine State, and was pronounced dead at a Florida hospital.
But since at least April 20, the Florida Department of Health has blocked the Medical Examiners Commission from releasing their own detailed spreadsheet of the COVID-19 dead. On Wednesday, the state released the medical examiners' spreadsheet but redacted the narratives and cause of death entries.
Thursday, May 14, 2020
New research described in the Bulletin on Retirement and Disability published by the National Bureau of Economic Research provides new support for thinking about ways to help maximize use of benefits to pay for core living expenses. Researchers Lint Barrage (UC Santa Barbara), Ian Chin (Michigan), Eric Chin (Dartmouth),and Justine Hastings (Brown) examine how timing of receipt of Supplemental Nutrition Assistance Program (SNAP) benefits affects a household's ability and success in paying for utilities, such as electric bills. They observe:
Our results suggest that, for low income households, timing of income from government benefits and the timing of bills due may have long-run consequences. If bills are not received when income is received, households are more likely to miss payments, which may compound into disconnections which may further impact family financial and health outcomes.
These results add to a growing literature suggesting that government benefits programs and/or private industry innovate in ways to help low income households balance budgets throughout the month and avoid potential poverty traps. In the case of electricity bills, moving bill receipt to coincide with SNAP benefits receipt could improve repayment rates. This could help low income families avoid poverty traps, but also lower electricity rates for all rate payers in regulated markets, since collection and electricity service disruption are costly and must be covered by regulated electricity rates. Further research is needed to implement and measure the impact of changes in timing of bill receipt through, for example, a randomized controlled trial, and to expand the outcome measures of impact to include measures of financial well being such as credit scores.
For more, read How Bill Timing Affects Low-Income and Aged Households, NBER RDRC Working Paper 19-09) and the Bulletin summary.
Our thanks to George Washington Law Professor Naomi Cahn for this reference. I suspect that the timing of core household bills and public receipt of pandemic-driven federal stimulus payments would make for another interesting study.
Wednesday, May 13, 2020
Could Residents in Nursing Homes, Assisted Living Facilities and Personal Care Homes be "Canaries in the Coal Mines?"
Coronavirus infection rates at nursing homes are hot news, and getting hotter each day. Some see this as evidence of substandard care. I had been holding hope, frankly, that when I read another horrific story about a specific nursing home with xxx cases, high death rates, or a staff decimated by infections, the explanation could be as simple as negligent care.
But, what if that isn't the reason? What if facilities are employing best available practices, but the "best available practices" just are not good enough in the context of congregate care settings for this complicated disease? Frankly, state of the art models for long-term care are ones with strong behavioral programs, where quality of daily life is as important as protection against risks. Interactions, engagement, exercise, activities are what make those programs "best available."
A few days ago a friend sent me a news story about an assisted living facility where approximately 50% of the residents have recently been diagnosed with Covid-19 infections -- and where a first Covid-19 related death has occurred. I was startled, because I recognized the name of the facility.
Less than four weeks ago, the testing at that facility had shown no patients or staff members to be positive for the coronavirus. Early in March, the pro-active managers instituted "no visiting" rules for family members and other outsiders, along with other strict precautions. The facility even made arrangements for nearby housing for staff members -- at no cost to the staff -- to make it easier for them to separate themselves from cross-infections in their own homes during the quarantine. The staff continued to involve residents in daily activities, recognizing that engagement was a critical part of care, especially without family and friends visiting.
I'd been hoping that the early reports of "no virus" were testament to the fact that best practices can be employed successfully to keep fragile elders or disabled adults safe without locking them in their rooms. But, that apparently proved not to work out at this very careful facility. I've heard critics say the solution is for elders to be "at home," But "keeping your loved one at home" often won't be a practical solution, especially if the needed care is complicated, often requiring more than "just" family.
Because this facility was where each of my parents lived during their last weeks, I saw first hand just how diligent and how careful that staff is about infection.
We are all gaining a stronger understanding of how complicated care is even without this particular, terrible new disease. The disease has also run rampant through many jails, prisons and commercial food plants, all additional examples of congregate settings. But if dedicated care communities with good ratios of professional staff and very good records on quality of care are struggling to prevent Covid-19 infection, what is the real message the canaries are singing?
Tuesday, May 12, 2020
Identifying the What, Where and Who for Documenting Key Information on Cause of Death during a Pandemic
As I reported last month, the Pennsylvania Department of Health and County Coroner offices are in a bit of a struggle over their roles and responsibilities to report causes of death, including COVID-19 related causes. The dispute continues and the issues include:
- How to report the "county location" of the deceased for a COVID-19 related-death? For example, if the individual became infected while living in Adams County, Pennsylvania, but the final treatment and death was at Penn State Hershey Medical Center in Dauphin County, should the "county of death" be Adams or Dauphin County?
- How to characterize the cause of death? For example, under Pennsylvania statutory law at 16 P.S. Section 1218-B (2018), County Coroners "shall investigate the facts and circumstances concerning a death that appears to have happened within [their] county, notwithstanding where the cause of the death may have occurred" to "determine the cause and manner of death." Should a "COVID-19 related death be described as "death by natural cause," a phrase often used on death certificates or more specifically as a "death known or suspected to be due to contagious disease and constituting a public hazard," a phrase referenced in the Coroner's law?
- Where a patient's attending medical professional certifies the cause of death and reports the cause directly to the State Registrar of Vital Statistics, should the state then be required to share that information with County Coroners? Attending medical professionals have legal authority to sign death certificates and to make reports directly to the State Registrar under Pennsylvania's Vital Statistics Law of 1953 at 35 P.S. Section 450.101 et seq. (amended in 2012). Without a clear path for sharing information, how will counties have timely information that can affect other county reporting obligations?
- Does the State have authority to mandate reporting by the County Coroners using criteria recommended by the federal Centers for Disease Control and Prevention (CDC)? In April 2020, the National Vital Statistics System, which operates under the CDC, issued guidance for reporting COVID-19 related deaths, offering three sample scenarios where the "immediate cause of death" would be described as some form of acute respiratory illness, while COVID-19 would be described as an "underlying cause" that initiated the events resulting in death.
- Who is responsible for resolving any inconsistencies in County and State statistics for deaths, including COVID-19 related deaths?
On a recent WITF-Radio's Smart Talk program in central Pennsylvania, coroners from York County and Cumberland County described their concerns about disparities between state and local statistics. Charley Hall reported that Cumberland County had 45 COVID-19 related deaths, while the State at the same time was reporting 37 deaths. In York County, the lower COVID-19 number was reported at the County level, while the State recorded a higher number. For more on the practical problems, listen to the Smart Talk Podcast for 5/11/2020. The coroners raised the potential for such discrepancies to trigger erosion of public trust.
In many Pennsylvania counties, as in other states, a significant majority of COVID-19 deaths are occurring in nursing homes or other long-term care residential settings. Some of the concerns about accuracy and transparency of reporting imply intentional under-reporting or misleading reports regarding deaths in nursing homes. Pennsylvania has one of the largest populations of citizens in the nation who reside in nursing homes. Long-term living is a major, multifaceted industry in Pennsylvania.
In addition, the number of diagnosed cases, the location of diagnosed cases, and the number of COVID-19 related deaths can make a difference in whether any particular county is allowed to move away from strict social-distancing related rules.
Monday, May 11, 2020
Syracuse Law Professor Nina Kohn (currently a visiting professor at Yale Law), has an important Op-Ed in the Washington Post, in which she tackles the not so subtle ageism that accompanies response to COVID-19 -- while making it clear that the issues are much deeper than a single disease. She writes:
Of course, older adults are at heightened risk, even though covid-19 strikes younger people, too. But across America — and beyond — we are losing our elders not only because they are especially susceptible. They’re also dying because of a more entrenched epidemic: the devaluation of older lives. Ageism is evident in how we talk about victims from different generations, in the shameful conditions in many nursing homes and even — explicitly — in the formulas some states and health-care systems have developed for determining which desperately ill people get care if there’s a shortage of medical resources.
For more, read The Pandemic Exposed a Painful Truth: American Doesn't Care About Hold People. The subtitle? "We speak of the elderly as expendable, then fail to protect them."
May 11, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Statistics | Permalink | Comments (0)
Thursday, April 30, 2020
The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January. The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."
I like this definition of "intersectionality":
The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage. Example: "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."
We need great presenters!
We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics. The conception of the program is broad, and we are exploring publication options.
If you are interested in participating, please send a 400-600 word description of what you'd like to discuss. Submissions should be sent to Professor Naomi Cahn, firstname.lastname@example.org, by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.
AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times: The Power of Words
April 30, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management, Science, Statistics, Webinars, Weblogs | Permalink | Comments (0)
Sunday, April 26, 2020
Last week, I listened to an interview of a County Coroner in Pennsylvania. The focus of the radio program was whether statistical accuracy for any State's determination of cause of death is important, especially during the COVID-19 pandemic.
The coroner said "yes" to the softball, threshold question but then the interview took a surprising turn. The host next asked, "How do you characterize cause of death for possible COVID-19 related deaths?" In Pennsylvania, there has been a bit of controversy on this topic, as detailed recently by the Philadelphia Inquirer. For example, if the affected person, especially an older adult, had multiple co-morbid conditions, such as serious heart disease and diabetes, is the new infection with COVID-19 (a contagious disease and public health hazad) the "official" cause of death as recognized by Pennsylvania law at 16 P.S. Section 1218-B (as revised and effective on December 24, 2018)?
The particular County Coroner, however, took his answer down a whole different path, predicting that COVID-19 deaths may end up being characterized as "homicides," if or when the disease is proven to be manipulated or caused by a laboratory in China. Whoa!
That track of analysis clearly startled the host, who tried to refocus the speaker's attention on the potential complicating factors that determine how death is related in whole or in part to the coronavirus disease. But the coroner wasn't willing to walk back his speculation, and started talking about the need for openness to the possibility of foreign, criminal intention.
The interview was an abrupt reminder that documenting any cause of death can be complicated. This can be especially true when the official in charge of the decision is an elected official. Elected officials, whether at the state or county level, may be subject to political views or pressures. Further, Pennsylvania and a surprising number of other states permit but do not require elected or appointed coroners to have a medical or pathology degree as a qualification for the job. In Pennsylvania, coroners for Class 2 and smaller counties -- the vast majority of its 67 counties -- are "elected." In 2018, the state law was amended to require newly elected county coroners to take a 32 hour course of instruction relevant to crime-scene investigation, toxicology, forensic autopsies and the legal duties of a coroner. Officials elected prior to the December 2018 effective date of that modernized law, however, are grandfathered into the credentials and are not required to take or pass any threshold test.
It seems that even without the one coroner's flirtation with conspiracy theories about the origination of the COVID-19 virus, Pennsylvania state officials were already trying to harmonize state and local policies about reporting COVID-19 as an official cause of death. During the Spring of 2020, Pennsylvania's Department of Health issued "Guidance" for Coroners and Medical Examiners regarding reporting COVID-19 related deaths, and the policy appears to emphasize that most certifications reporting cause of death are to be made by "a medical professional who attended the deceased during the last illness." According to the Guidance, it is only when there is a "referral" to the County Coroner or Medical Examiner that the county official would have a role in making a death report under the state's Vital Statistics Law.
Friday, April 24, 2020
Transparency Issues in Long-Term Care: The Potential for Misuse of Confidentiality Policies to Hide Infection Facts from the Public
Recently I was talking with a friend in another state who is the director of an assisted living facility that largely serves older adults who have significant risks factors. I asked, "Have you had any residents or staff members that have tested positive for COVID-19?" I asked her directly, because there was no way to know the answer to that question from public websites, either in her state or on a national basis. The good news was that her facility had had no such diagnoses, either among staff or residents. I also asked what she felt was key to avoiding infections, and we talked about the rates uncovered in other facilities in her own state. She said bluntly, "We learned from our experience with influenza the last two years that we had to make real changes, and we did so before the COVID-19 was a reality and doubled down when we started hearing about the coronavirus."
Internal infections have long-been a documented problem in residential care settings, and certainly not limited to so-called "nursing homes." Contributing factors include residents who may have physical or mental conditions that make self-protection difficult and perhaps impossible. My sister and I used to struggle mightily with a family member whose dementia interfered with the simple task of hand-washing -- even though this same person was the one who taught us the importance of soap and water from the time we were small children. It is perhaps ironic to recall that as a horse-mad girl I had tried to persuade both of my parents that there should be an exception for "barn dirt," on my theory that horse-related dirt was "clean dirt." My mothers still insisted I undress on the back porch and wash thoroughly before coming in for dinner. Wise woman, one who was quick to dismiss utter nonsense.
Fast forward decades and every day I hear new arguments regarding why facilities that have experienced life-threatening infections should not be required to report this in a public venue. The most problematic argument is one that says an individual's infection is confidential medical information that prevents the facility from reporting statistical information, and thus an infection cannot be made public. I've seen arguments about federal or state record-keeping policies such as HIPPA privacy rules or Pennsylvania's confidentiality rules as the rationalization. I think I know what my mother would call this kind of argument.
Syracuse Law Professor Nina Kohn tackles the history of mishandled safeguards against infections in long-term care with an Op-Ed for The Hill. In "Addressing the Crisis in Long-Term Care Facilities," Professor Kohn points to specific actions at the federal level that have weakened, rather than strengthened, potential safeguards. She makes five specific recommendations, including prohibitions on staff working in more than one-long-term care facility, to reduce cross-contamination, and the need for family members and others to make it clear that we "are paying attention to what is happening." She reminds us: "Those who are health care agents for nursing home residents should not be afraid to request access to medical records, as federal law entitles them to do, if facilities are not forthcoming with information about the care being provided."
April 24, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, April 20, 2020
Our friend Professor Naomi Cahn at George Washington Law has advised us that the peer-reviewed Journal of Elder Policy is planning a special issue related to COVID-19. Certainly the implications of policy in this pandemic are constantly in the news, and how appropriate to begin the process of analysis.
Abstracts of 500 words are due by June 15, 2020. Full papers of between 8,000 and 10,000 words are due by September 30, 2020.
Topics may include but are not limited to:
- Risk assessment, Ageism, Legislation to protect older adults,
- Community initiatives, Medical and nursing perspectives,
- Mental health challenges for elders, Family support or conflict,
- Helping and volunteering, Rationing of care, Challenges for caregivers
Authors should send their Vita and a 500 word abstract related to their paper by June 15 to Managing Assistant Editor, Kaitlyn Langendoerfer. Details available here.
The ever-busy Naomi is a member of the Editorial Board for the Journal. Thank you for letting us know about this opportunity, Naomi!
April 20, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Programs/CLEs, Science, Statistics | Permalink | Comments (0)
Wednesday, April 8, 2020
At Dickinson Law, in the last third of the Spring 2020 Semester, my Elder Law students are doing a module on End-of-Life Decisions. I had planned this module more than a year in advance; certainly the timing has proven to be uniquely relevant. Originally, my plan was for an in-depth discussion about choices related to assisted death, sometimes known as the Death with Dignity or Physician-Assisted Death. And we are considering comparative studies and positions on legislation intended to support this choice, starting with a review of Oregon's more than 20 years of experience in providing this option.
The COVID-19 pandemic, however, is triggering new focal points on end-of-life decisions. Consider for example the statement by an emergency room chief in a San Francisco hospital, as quoted recently in the Los Angeles Times, "You have an 80-year-old and a 20-year-old and both need a vent and you only have one. What do you do?" Individuals may have thoughtfully made advance decisions about whether they want mechanical assistance in breathing during life-or-death circumstances. They may have appointed an agent to speak for them or created written directions via living wills, DNR orders, or POLST documents. But it is one thing to make you own decision; it is another to have the "decision" made because of lack of what is arguably baseline equipment.
I've been particularly interested in the history behind ventilator shortages as reported by The New York Times.
Thirteen years ago, a group of U.S. public health officials came up with a plan to address what they regarded as one of the medical system’s crucial vulnerabilities: a shortage of ventilators. The breathing-assistance machines tended to be bulky, expensive and limited in number. The plan was to build a large fleet of inexpensive portable devices to deploy in a flu pandemic or another crisis.
Money was budgeted. A federal contract was signed. Work got underway.
And then things suddenly veered off course. A multibillion-dollar maker of medical devices bought the small California company that had been hired to design the new machines. The project ultimately produced zero ventilators.
The rest of the story reads like a detective tale. The small California-based company was proposing a new generation of easy-to-use, more cost effective, mobile ventilators. By 2012, the partners were on schedule to file for market approval in September 2013, paving the path for production. However, in May 2012, a much large medical device manufacturer bought the California-based company for just over $100 million. Good news? That larger company might have especially strong resources for speedy production, right?
The new owner, Covidien, already made ventilators -- at a higher cost -- and in 2014, reportedly told federal officials they wanted to get out of the new ventilator contract. The federal government agreed to cancel the contract. Covidien was sold to an even larger international company in 2015.
Why? For more, read "The U.S. Tried to Build a New Fleet of Ventilators. The Mission Failed," by Nicholas Kulish, Sarah Kliff and Jessica Silver-Greenberg, published in the NY Times on March 29 2020 and updated on March 31, 2020. Or catch a NY Times podcast that looks further into shortages of hospital rooms, COVID-19 testing supplies and ventilator availability. All interesting -- especially if you are talking about "end-of- life decisions."
Sunday, March 29, 2020
I blogged a couple of times about social isolation's impact on elders as we move through this pandemic. Imagine social isolation when you live alone and how that compounds your loneliness. This report from Pew Research, released before the pandemic swept the U.S., reports that elders in the U.S. live alone in greater numbers than other countries. Older people are more likely to live alone in the U.S. than elsewhere in the world shows that:
Living with an extended circle of relatives is the most common type of household arrangement for older people around the world, according to a recent Pew Research Center study. But in the United States, older people are far less likely to live this way – and far more likely to live alone or with only a spouse or partner.
Let me share some stats from the article:
- "In the U.S., 27% of adults ages 60 and older live alone, compared with 16% of adults in the 130 countries and territories studied."
- "U.S. adults ages 60 and older also are more likely than their counterparts around the world to live as a couple without young children at home. Almost half of Americans in this age group (46%) share a home with only one spouse or partner, compared with three-in-ten globally (31%)."
- "Globally, living in extended-family households – those that include relatives such as grandchildren, nephews and adult children’s spouses – is the most common arrangement for people 60 and older. "