Blue Water Vets Win Presumption of Service Connection

The U.S. Court of Appeals for the Federal Circuit has ruled that the presumption of service connection for certain diseases for veterans who served in Vietnam applies to so-called "blue water" veterans - those who served on ships in waterways off the coast of Vietnam, but did not set foot on land.  

In 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in the Republic of Vietnam.  Under § 1116(f), such a veteran “shall be presumed to have been exposed during such service to [the] herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.”

In 1993, the Department of Veterans Affairs issued regulations pursuant to § 1116 that stated “‘Service in the Republic of Vietnam’ includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regulation 307”). In 1997 in a General Counsel opinion about a different regulation, the government interpreted Regulation 307 as limiting service “in the Republic of Vietnam,"to service in waters offshore the landmass of the Republic of Vietnam only if the service involved duty or visitation on the landmass, including the inland waterways of the Republic of Vietnam, (“foot-on-land” requirement). Gen. Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63,603, 63,604 (Dec. 1, 1997).  

Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid  was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea.  Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007, but was denied service connection for both in April 2009 because he could not meet the government’s foot-on-land requirement. 

Diabetes mellitus is listed in the statute under paragraph (2) of § 1116(a), and prostate cancer is listed in the pertinent regulation, 38 C.F.R. § 3.309(e). The Board of Veterans’ Appeals likewise denied him service connection in March 2011 and again in July 2015, finding “[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange,” under § 1116. The Veterans Court affirmed.

The U.S. Court of Appeals for the Federal Circuit, however, reversed the lower decisions, ruling in favor of Mr. Procopio:

"Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements. They are. Because “the intent of Congress is clear, that is the end of the matter.” [citation omitted]. Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus. Accordingly, we reverse." 

The case is Procopio v. Wilkie, 2017-1821 (Fed. Cir. 2019).

Steven Berenson, wrote an article about this decision on his Veterans Law Prof Blog.  He notes that the National  Law School Veterans Clinics Consortium (NLSVCC) filed an amicus brief in support of the Mr. Procopio's position.

Transport Risk Often Overlooked as Risk of Institutional Long-term Care.

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Among the many risks inherent to institutional care are those associated with transport. The most recent illustration comes as a result of the State of Rhode Island switching to a new Medicaid transportation provider.  

Rhode Island first moved from LogistiCare to Missouri-based Medical Transportation Management on January 1, 2019. According to an article in McKnight's Long-Term Care News, the switch has been a "bumpy ride, literally and figuratively, with a flood of missed appointments, delays and other problems, according to those who testified at a state committee meeting last Thursday."

Advocates warn that, every day, a transport provider has put residents at life-threatening risk.  “Someone is going to die,” former state senator John Tassoni Jr. said bluntly at a recent hearing, according to the Providence Journal.  More than 1,000 complaints have been filed, with many patients missing scheduled chemotherapy, dialysis, methadone treatment or doctor visits. Some local nursing homes leaders have transported residents using personal vehicles as a result of transport failures and deficiencies.

“Frankly, at this point it’s become a fiasco,” said Christopher Ryan, owner and administrator of the 71-bed Pine Grove Health Center nursing facility in Pascoag, RI. “At what point does this end?”

Tassoni, who is now an executive with the Mental Health Leadership Council of Rhode Island, called Medical Transportation Management’s short tenure “38 days of hell.”

In a statement submitted to the committee, the head of MTM apologized and committed to working on the issue, noting that the company is bringing new technology to Rhode Island, and the changeover has proved challenging. The company came under fire in Arkansas for a similar string of missed appointments, McKnight’s reported in January.

This blog has repeatedly highlighted stories illustrating transport risk: 

• Man Transported to SNF But Dropped Off at Wrong Location Found Alive Three Days Later;
• Patient Discharged to Nursing Home 300 Miles Away;
• Ambulance Driver Charged with Homicide in Death of Nursing Home Resident.

Risks inherent to institutional care are among the many reasons that people are employing Aging in Place planning.  

Recent Decision Complicates Consensual Sexual Relations in SNF's

Consensual sexual encounters are normal and expected in everyday life, and so they are commonplace even in long-term care facilities.  Navigating the nuances of nursing home resident sexual encounters is, however, extremely complicated and challenging for nursing home administrators, residents, and family members of residents.  A recent federal court case has further complicated the decision-making and risk assessment. 

The case in question relates to the Neighbors Rehabilitation Center in Byron, Illinois, which had a policy of intervening to stop sexual encounters between residents with dementia only when there were “outward signs” of non-consent.  According to the nursing home, if there was evidence of consent, the institution would generally permit sexual encounters between residents, even if there was some cognitive deficit or decline.  

The Centers for Medicare & Medicaid Services (CMS) determined that the policy was not adequate to protect  residents, noting that the policy left some impaired residents in immediate jeopardy from sexual encounters. The agency fined the facility $83,800, McKnight’s Long-Term Care News  reported.. 

Neighbors appealed the citation, the Immediate Jeopardy categorization and the amount, arguing that residents, even those with cognitive impairments, have the right to have consensual intimate relationships.  The U.S. Court of Appeals for the Seventh Circuit, however, ruled that there was “substantial evidence” to back up CMS, saying the Neighbors policy was “misguided” and left residents at the risk of victimization. This was especially true when the residents had “severe cognitive or other deficits which may have adversely impacted their ability to actively protest or object.”

The court wrote: 

“Certainly, those who reside in long‐term care facilities are entitled to the dignity of maintaining intimate relationships.  It is also true, however, that when those persons are cognitively or physically impaired, care must be taken by a facility to ensure that those intimate relationships are consensual. The record reflects that Neighbors failed to exercise this care.”

The court noted findings that staff, aware of the sexual interactions, did not talk to the residents about their feelings about these "relationships"; did not document the residents' capacity for consent (or lack thereof) or communicate with residents' physicians for medical assessment of how their cognitive deficits impacted that capacity; did not discuss the developments with the residents' responsible parties; and did not record any monitoring of the behaviors or make any care plans to account for them. The court determined that Neighbors' non-intervention policy prevented any real inquiry into consent, except in the extreme situation where a resident was yelling or physically acting out.

In response, Marty Stempniak, staff writer, for McKnight's, penned an article seeking to provide guidance for administrators, entitled, "What nursing homes can learn from a ‘troubling’ court decision on sexual consent." Stempniak writes that "[o]ne longtime industry expert told me that he was deeply “troubled” by the ruling, and especially the fact that it was labeled as 'Immediate Jeopardy' with there being no outward signs of serious injury, harm or impairment. He’s worried that it could have a negative influence on how SNF leaders regulate sexual activity going forward."

“This court decision will have a very chilling effect on nursing homes’ efforts to move to a more enlightened and balanced approach to dealing with intimacy,” said Daniel Reingold, CEO of RiverSpring Health, a Bronx-based provider that established one of the nation’s first sexuality and intimacy policies in a long-term care facility in the 1990s. Reingold believes CMS and the federal court have established “a very difficult standard in the me-too world that we live in.”

“We rely frequently on reactions of residents to determine whether they want or don’t want something. That is a typical standard by nursing staff,” he told me. For instance, if residents are unable to voice displeasure with a meal and a CNA is feeding them something they don’t want. Some may get agitated and push the food away. “That’s telling us, ‘I don’t want this,’ and we make those kinds of decisions every day, in multiple ways to determine the preference or lack of a preference on the part of a resident with dementia.”

Reingold hopes this doesn’t lead to administrators creating blanket declarations that any physical interaction between residents with cognitive impairment must immediately be stopped, regardless of what occurs leading up to the incident. What if they’ve been holding hands for days and showing signs of outward affection beforehand?

“To decide unilaterally and across the board, ‘Break ’em up, they’ve got Alzheimer’s, they’re having sex, that’s a no-go,’ would be a shame,” Reingold said. “We allow people with Alzheimer’s and dementia to make decisions all day long. Do you want the peas or the carrots? Do you want to play bingo or go to the art program? Do you want salt or no salt? And we honor those kinds of things. Just because someone has short-term memory impairment doesn’t mean that they can’t make a decision in the moment. We know that.”

The specific facts of the federal case case involved three residents who were battling some form of dementia or Alzheimer’s.  In one instance, an 80-year-old man suffering from dementia and behavioral disturbances was observed touching the genitals of a 65-year-old man who suffered from Alzheimer’s, dementia and behavioral disturbances. The two lived in separate rooms, connected by a shared bathroom. Coming across the encounter in one man’s bed, a nursing assistant did not see the 65-year-old objecting and did not intervene or investigate further. In another case, that same 65-year-old man was witnessed fondling a 77-year-old female resident suffering from Alzheimer’s, low cognitive functioning and severe impairment. An aide witnessed that incident and separated them because of the woman’s auditory challenges, but did not intervene further.

Reingold said the interaction between the two men suggested consent, "I didn’t think it was unreasonable for a nursing staff member to look at it and say that it’s basically consensual. It’s tricky. It’s a tricky balance to make, but I’m a little disheartened that the court felt this way.”

Reingold, who also holds a law degree and reviewed the court’s decision, believes the decision to be the highest court ruling related to sexual behavior between residents of nursing homes who have dementia. He said it will “absolutely” be used to establish precedent, and is concerned that it will be used by plaintiffs’ attorneys to file lawsuits against SNFs.

Of course, among the concerns for elderly residents, their loved ones, and fiduciaries, are the consequences of what may be deemed to be violations of these policies, especially if they are poorly articulated, or inconsistently enforced or applied.  To make consideration of these matters more dire, there is possible criminal consequence, such as a husband encountered upon seeking to continue sexual relations with his wife after she became a resident of an institution.   

For nursing homes, Reingold offered three steps leaders can take following this precedent-setting court decision:

• Make sure that the facility has very carefully drafted policies and procedures.
• Be sure that nursing staff are well trained in exactly how to deal with cases where there is sexual interaction between residents, particularly those who have experienced cognitive decline.
• Document specific interventions in the chart. 

Of course, elderly residents, their families, loved ones, and fiduciaries can, and should, inform themselves and their principals of these rules, and review incident reports for possible violations.  Inspecting, identifying, and tracking physical injuries, and noting emotional or psychological changes can also aid in identifying violations. 

For its part, in a statement sent to McKnight’s after the initial story ran, a spokeswoman  for the nursing home emphasized that the fine was related to an interaction between two consenting adults:  

“While the facility accepts the court’s ruling we respectfully disagree and continue to advocate that all residents have the right to privacy in their interactions with their peers and loved ones.” 

As if there is not already a host of considerations a senior resident, his or her family members, and fiduciaries must resolve. Of course, staying at home, if possible, avoids these considerations and risks.

CMS to "call-out" Nursing Homes Publicly On Safety Lapses

Centers for Medicare & Medicaid Services (CMS) is considering possible changes to Nursing Home Compare to better capture patient safety concerns, according to an article in McKnight's Long-Term Care News.  The current comparison tool captures only a “subset of harm” that is inflicted on residents in nursing facilities. CMS is seeking to reform the current system by developing a composite measure of healthcare-acquired infections, which would be incorporated into the rankings.

“While we view patient safety and quality improvement as a continuum, we agree that specifically ‘calling out’ facility performance on patient safety can resonate with and be beneficial to consumers,” wrote Kate Goodrich, M.D., the agency’s chief medical officer and  director of the Center for Clinical Standards and Quality in a Health Affairs blog.

A recent study demanded that changes be made to the standard measure for capturing quality at nursing homes.  The study concluded that the current five-star rating system failed to paint an accurate picture of patient safety. The study authors compared nursing homes’ performance in standard quality measures with six noted patient safety standards, including pressure sores, infections, falls and medication errors, and concluded that the relationship was weak between the two measures, “leaving consumers who care about patient safety with little guidance.”

Goodrich emphasized that SNF patient safety is a “crucial strategic priority” for the federal government. She countered the study’s conclusions by writing that Nursing Home Compare does contain measures that either directly capture harm or are highly correlated with it, such as inappropriate antipsychotic use, which may be linked to falls and other events.

Along with the infection-related composite measure, Goodrich wrote CMS will “continue to explore additional facets of and measures associated with safety in nursing homes going forward.” In addition, the agency recently developed measures to gauge the transfer of health information between providers and the patient. Those were designed to meet the requirements of the IMPACT Act, and CMS is intending to propose adopting them for the SNF Quality Reporting Program, Goodrich wrote: “[w]e believe these measures will address the important safety issue of improving the hand-off of medication information during critical care transitions.”

There is no discussion whether or when reporting of intentional actions such as sexual and physical assault by residents and staff will improve.