Who Has The Right in Ohio to Bury or Cremate a Deceased?

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Authority to make decisions regarding disposition of bodily remains, funeral, cremation, and related goods and services is conferred to a person by one of two means.  The first is appointment by the deceased prior to death, and the second is by statute.  

Appointment of Representative 

Ohio law allows an individual during his or her lifetime to appoint a representative who will have the top priority when it comes to making funeral and disposition arrangements. If an individual appoints a representative in a document that meets the requirements of Ohio Revised Code § 2108.72, that representative has full authority, even over the contrary wishes of a spouse, or eldest child, to make funeral, cremation, and disposition arrangements.

If a declarant or deceased adult has made an anatomical gift under sections 2108.01 to 2108.29 of the Ohio Revised Code, any person given the right of disposition is bound by the anatomical gift and must follow the instructions associated with the gift before making any decisions or taking any other actions associated with the right.  See, Ohio Revised Code § 2108.78.

An appointment is valid only if made in a written document that meets the requirements of Ohio Revised Code 2108.72. Owners and employees of funeral homes, cemeteries and crematories may not be appointed as a representative unless they are related by blood or marriage to the individual making the appointment. 

Appointment of Representative forms are available free of charge at most funeral homes and crematories, and are available online here courtesy of the Franklin County Probate Court, and here, courtesy of the Funeral Consumers Alliance (FCA), a nonprofit organization that protects consumers' rights to choose meaningful, dignified, affordable funerals.  We encourage use of the forms available courtesy of Franklin County Probate Court, because they are "form fillable;"  you can type your personal information into the form and print it out for signature, before witnesses and/or a notary public.
   

Statutory Authority of a Representative

Section 2108.81 of the Revised Code, establishes the following order of priority of a representative to make disposition decisions:

(1)The representative appointed by the decedent to have the right of disposition.

(2)The decedent's surviving spouse.

(3)The decedent's surviving child or children.

(4)The decedent's surviving parent or parents.

(5)The decedent's surviving sibling or siblings.

(6)The decedent's surviving grandparent or grandparents.

(7)The lineal descendants of the decedent's grandparents as spelled out in Section 2105.06 of the Revised Code.

(8)The decedent's personal guardian at the time of death.

(9)Any person willing to assume the right of disposition, including the personal representative of the estate or the licensed funeral director with custody of the body, after attesting in writing and good faith that they could not locate any of the persons in the above priority list.

In the event that several individuals of the same class cannot agree on funeral or disposition arrangements, the law permits the majority to control. Additionally, if an individual cannot be located, the majority of those who are available will control. For example, if a widow dies with five adult children, two of whom want cremation, one of whom wants burial and two of whom cannot be located, the children who opted for cremation would prevail.

If there is not a majority present to resolve a dispute, any party, including the funeral director, may petition the probate court to decide the issue. The probate court is given five factors in the statute to consider when rendering a decision as to who will control the disposition.

Liability for the Cost of Disposition

Although a deceased's estate is liable for the cost of the funeral, cremation, burial, or other disposition goods and services, the person with authority, whether designated in writing or acting pursuant to the Ohio statute is also personally liable.  Section 2108.89 of the Ohio Revised Code provides that:  

The following persons shall be liable for the reasonable costs of any goods or services purchased in connection with the exercise of the right of disposition for a declarant or deceased person:

(A) A representative or successor who assumes liability for the cost of such goods and services by signing a written declaration that states that such an assumption is made;

(B) A person to whom the right of disposition is assigned pursuant to section 2108.81 of the Revised Code and who has purchased goods or services associated with an exercise of the right.

While the agent or representative of the deceased can make a preferred claim against the estate for reimbursement, and be paid before other creditors of the estate, the agent is, nonetheless, personally responsible. 
  

Loss of Right of Disposition 

In order to exercise the right of disposition, an individual must be 18 years or older and mentally competent. Persons who have been appointed as a representative or who hold the right of disposition because of their relationship with the decedent will lose that right in the following situations:

• The person dies or is declared mentally incompetent by the probate court;
• The person resigns or declines to exercise the right of disposition;
• The person refuses to exercise the right within two days after notification of the decedent's death;
• The person cannot be located with reasonable effort;
• The person is charged with the murder, aggravated murder or voluntary manslaughter of the decedent;
• The person is charged with an act of domestic violence and it is alleged that the violence resulted or contributed to the decedent's death;
• The person is the spouse of the decedent and a petition for divorce has been filed and has not been dismissed at the time of death, or;
• The person is the spouse of the decedent and the probate court determines that the decedent and the spouse were "estranged" at the time of death;
• The person is unwilling to accept responsibility for paying the funeral costs.

The last provision is not listed overtly in in the Ohio Revised Code Sections describing the conditions which cause a person forfeit the authority to make disposition decisions, but arises as a consequence of Ohio law making the agent personally responsible for costs and expenses.   A person who holds the right of disposition, but is unwilling or unable to pay the costs of the funeral and disposition, loses that right; funeral homes are not  required to take directions from relatives unless they are willing and able to pay for the funeral, burial, or cremation.  

Funeral Home Protection

Ohio law provides an extensive array of protections for funeral homes, cemeteries and crematories against lawsuits and claims by disgruntled family members. As long as employees of funeral homes, cemeteries or crematories are acting in good faith, they may rely upon statements made to them by persons claiming to have the right of disposition. Moreover, the statute provides immunity against lawsuits in the event that reliance was misplaced. For example, if a person misrepresents that they have the right of disposition, the funeral home will not be responsible for relying upon that misrepresentation unless it can be shown that the funeral director had reason to know that the misrepresentation was false.

Most funeral homes,  crematoriums, and cemeteries will require the person arranging the funeral to sign a "Claim of Authority to Carry Out Disposition" form which  tracks the wording of the Ohio statute.  This form constitutes a certification that the person is authorized to make decisions, and helps to demonstrate that the funeral home acted in good faith in relying upon claims made by family members.

The law also provides that a funeral director who is aware of a dispute regarding the right of disposition may refuse to accept the remains or to complete the funeral or disposition until the funeral director receives a court order or a written authorization from the person or persons who have the right of disposition. During a dispute, the statute authorizes the funeral director to embalm or refrigerate the remains in order to preserve them and to add those costs to the funeral bill. Moreover, if the funeral home must seek the intervention of the probate court, the funeral home may add its legal fees and court costs to the funeral bill.

For this reason and many others, every person adopting an estate plan should complete a form identifying the persons, in order of succession they desire to exercise disposition authority.  Failure to do so is an invitation to disputes, and the costs can be extreme for disputes and disagreements, in part because the estate will be responsible for the legal fees incurred by the funeral home, crematorium, or cemetary. 

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Who Can Sign A Tax Return for a Deceased Person?

As tax time approaches and passes, my clients often wonder why my office is so stressed, given that we prepare no tax returns on behalf of clients.  The answer is found in the myriad of questions that clients pose, sometimes at the request of a tax preparer, which arise because of a trust or other entity created as part of an estate plan.  These questions often arise from simple misunderstandings regarding the tax return, or serious inability to determine a proper course of action.  

Beginning this year, and for however many years that I am able, I am turning these confounding queries and quandaries into articles for future reference.  Every year seems to have one or two that dominate the time and effort we expend, usually without charge, in service to our clients' goals.  As you consider the following question and discussion, remember than most of our clients employ some form of trust in their estate plan, and settlement of the vast majority of these involve no probate, no involvement with the probate court, and of course, no purpose in seeking or obtaining appointment of an executor.  The general information that we provide indicates that the successor trustee should file the deceased's final tax return, and by implication, that s/he can sign the return.

Every season we are besieged by hysterical calls usually within weeks, days or hours of the filing deadline; "I was just advised that a trustee cannot sign the final tax return, and only and executor or administrator appointed by a probate court can file the return,  Help!"  Often, this is the first my office learns of the death of a client, which only adds to the "drama." Often, too, clients' successor trustees have already consulted with another lawyer, who has asked for an extravagant retainer to prosecute a hastily prepared probate to seek and obtain appointment of a fiduciary. Fortunately, there is no reason for hysteria or concern, and the answer is quite simple and satisfying.

So, who can sign a return for a deceased person? Such a common and simple question, which apparently elicits different responses from different people, some wrong or partially wrong, and more often than not, missing a more important question soon discovered. 

To begin, the answer to the direct question is rather simple; a surviving spouse, trustee, executor, guardian, custodian, administrator, or conservator can sign a return on behalf of a deceased person. An agent or attorney-in-fact under a power of attorney cannot technically sign the return; the powers are void on the death of the Principal. What if, however, the agent/attorney-in-fact has property or assets of the deceased? Then the agent is a custodian and can sign as a custodian.

The answer to that question begs another: who can negotiate a refund check?  The answer should be determined before a fiduciary actually has a check in hand.  Regardless, determination and resolution should not impede filing the return.  In other words, there is time to make a determination if there is a problem, and implement a solution if necessary.    

The material question isn't even whether there is a refund, but whether there will be a substantial refund. If there is any refund, technically, a probate has  to be opened to appoint a fiduciary (executor or administrator) empowered to negotiate the check, which will be made out to the deceased or the estate of the deceased.  Clients often ask, "Can I just deposit the check into the trust account?"  Legally, no.  Practically, maybe.  

Because I can't assure a client that a bank will negotiate a check made out to a deceased person or the estate of a deceased person, suggesting they may do so would be poor "practical" advice.  Legally, though, there is no real option.  The trust estate and probate estate are different estates, and they may have different beneficiaries, and fiduciaries. Legally treating one as another is dangerous and unwise.  Despite that banks do and have  permitted negotiation of such checks, an executor or administrator should be appointed to negotiate the check and distribute, legally, the proceeds. 

IRS uncertainty makes the matter even more difficult; if the return is signed on behalf of the deceased by someone other than the deceased, and the date of death is not disclosed or is overlooked by the Service, there is the possibility that the refund check will be drawn payable to the deceased, and not to the estate of the deceased.  This occurs, too, when a tax preparer (layperson or professional) is unsure whether or how to advise the Service that the return is a final return on behalf of a deceased.  A check drawn payable to the deceased is significantly more likely to be accepted by a bank on deposit into the deceased's irrevocable trust, than would a check made out to the "estate of" the deceased. I advise clients that a probate fiduciary should be appointed to negotiate the check.  

There is no answer to the question, what constitutes a "substantial refund." If the refund is too small, less than fifty dollars, for example, it may not make sense to appoint an executor/administrator given the cost. The court filing fee for a Summary Administration without a Will typically exceeds $80.00.  Obviously, the circumstances and the amount of the refund will dictate or inform the proper course of action.  

"But I only did the return to get the refund," is a common lament.  "Yes," I reply, that may be true, but you also prepared the final return because it is your duty to do so, and there is no way other than filing the return to know that you have accounted for all income, and paid all taxes that are due.  These are your legal responsibility.  In other words, had you called and asked, 'I am confident that the deceased doesn't owe any taxes, so I don't have to file a final return?' my reply would have been along the lines that the only real way to know, and more importantly, the only way to start a statute of limitations running if you are wrong, is to file the return."     

Bottom line? A successor trustee can and should sign the return.

The following is from the IRS in response to the question "who can file a decedent's return?"

The personal representative of an estate is an executor, administrator, or anyone else in charge of the decedent's property. The personal representative is responsible for filing any final individual income tax return(s) and the estate tax return of the decedent when due. You may need to file Form 56, Notice Concerning Fiduciary Relationship to notify the IRS of the existence of a fiduciary relationship. A fiduciary (trustee, executor, administrator, receiver or guardian) stands in the position of a taxpayer and acts as the taxpayer.

So when an advisor says a trustee cannot sign a return, they are probably saying that the trustee "shouldn't," sign the return under the circumstances, or advising that they may not be able to negotiate the check. Clearly, a fiduciary or other representative can sign a return on behalf of a deceased.

Trump Administration Initiative Helps States with More and Faster COVID-19 Testing in Nursing Homes

Nursing homes with three or more COVID-19 cases will be the first to receive on-site diagnostic test equipment from federal health agencies, starting in regions where infections are spiking.

The news was announced Wednesday by the Centers for Medicare & Medicaid Services (CMS), a day after Administrator Seema Verma revealed a new federal plan to deploy rapid point-of-care COVID-19 testing capabilities to eldercare facilities nationwide.

In this week’s rollout, federal agencies will prioritize about 2,000 facilities in hard-hit locations such as Florida, Arizona and Texas. Each approved facility will receive one diagnostic testing instrument and associated tests. Once equipment is distributed, operators can procure additional tests directly from the manufacturers, health officials told nursing homes in a conference call last week, according to McKnight's Long-term Care News.

According to a statement released by Verma, 

The goal is to support on-site infection control and prevention through universal testing. It gives nursing homes the ability to swiftly identify residents that need to be isolated and mitigate the spread of the virus. As one more tool in the toolbox, it represents an important step toward the long-awaited reunion of residents with their loved ones.

To take part, nursing homes must have the capability to test residents and staff on a weekly basis or in accordance with state and local health department guidance, according to the Department of Health and Human Services (DHS), which is helping to distribute the equipment. Visitor testing is also possible “if appropriate for that facility,” the agency added.

The equipment, including the Quidel Sofia and Sofia 2 instruments and BD Veritor Plus Systems, uses antigen tests that can quickly detect fragments of viral proteins in nasal cavity swab samples, providing results in minutes. 

While point-of-care tests may be “slightly more likely” to have a false negative result than laboratory tests, “these are the best, most cost-effective tests we have on the market right now,” said Adm. Brett Giroir, Assistant Secretary of the DHS during the Wednesday call.

“We think this is going to be a turning point in this fight against the coronavirus and keeping our residents safe,” CMS’s Verma concluded.

The new federal initiative was announced after months of lobbying for better testing access by the eldercare industry. Now some advocates have questions. Katie Smith Sloan, president and CEO of LeadingAge, has called for more information about staff training, access to ongoing test supplies, and test reliability for operators’ planning purposes. 

According to CMS, there are more than 200,000 confirmed or suspected cases of COVID-19 and more than 35,000 COVID-19 deaths among nursing home residents as of July 9, 2020. Additionally, the Centers for Disease Control and Prevention (CDC)  recommends that nursing homes perform baseline testing of all residents and staff, followed by regular screening and surveillance through routine testing to detect potential outbreak situations early and reduce morbidity and mortality.  

Trump Expected to Issue Executive Order Reducing Reliance on Foreign Prescription Drugs, PPE

 According to the The Senior Citizens League (TSCL) Weekly Update for Week Ending July 11, 2020,  White House Chief of Staff Mark Meadows announced that President Trump would soon be signing three executive orders regarding prescription drug prices.  While he did not provide any further information, the Washington Post published an article about the likely subject matter of at least one the orders.

It is anticipated that one of the orders will be to shift drug and medical production to this country by suddenly cutting off federal agencies from those offshore supply chains.  The order is expected to apply to government programs and agencies that directly purchase drugs and medical supplies, according to lobbyists and industry watchers. They may include the Department of Veterans Affairs, the Strategic National Stockpile, and the Federal Bureau of Prisons. 

The order would broaden existing federal requirements for government agencies to prioritize buying supplies for medicines deemed “essential” from U.S. manufacturers, rather than companies in China or elsewhere around the world. According to the Post, labs struggled to ramp up coronavirus testing, and hospitals and nursing homes ran short of personal protective equipment over the spring. These failures hampered the national and state responses to the pandemic, leaving the United States with far more infections and deaths than any other country. Even now, shortages of protective medical gear are looming as outbreaks grow in the South. One big reason is because these supplies often come from other countries, which were also dealing with outbreaks. 

The nation’s pharmaceutical industry has pushed back against the potential order, arguing that the United States should not shut itself off from a global supply chain. There is concern that it could make it even harder to obtain supplies critical to combating the pandemic, such as personal protective equipment, testing supplies and even medications to treat coronavirus patients.

“Turning our backs on trading partners during a crisis could damage our relationships long after this pandemic ends,” the Pharmaceutical Research and Manufacturers of America (PhARMA) and dozens of other business and trade groups wrote in a letter to the administration.

Other critics say that revising the government’s purchasing rules will not provide a quick solution to the supply shortages of the current pandemic. “Making Buy American provisions tighter during the current crisis would likely do more harm than good,” according to William Reinsch and Jack Caporal of the Center for Strategic and International Studies.

Eighty percent of the nation’s active pharmaceutical ingredients come from overseas — and China is its No. 2 supplier, behind only Canada.

When it comes to generic drugs, a “substantial portion” of U.S. imports come either directly from China or third countries such as India, which use active ingredients sourced from China.

Moreover, U.S. dependence on China for drugs and drug products is growing. Its imports of Chinese medical equipment increased 78 percent between 2010 and 2018.

Court Protects an Estate Sued By An Annuity Company For Over-payment: Companies Should Know When Their Customers Die

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An annuity company sued a customer’s estate for not reporting the death of his wife, which resulted in him receiving larger monthly payments after her death than he was entitled to under the contract.  The customer died in 2013, and the annuity company discovered the over-payments in 2014. In 2016, the annuity company filed suit against the customer’s estate for the over-payments. Both parties filed summary judgment motions, and the trial court entered judgment for the annuity company. The estate appealed.  

The court of appeals reversed and rendered judgment for the estate. The court first addressed the annuity company’s breach of contract claim. The court held that the contract did not expressly or impliedly require the surviving spouse to report the death of the first spouse. The court held:

"In sum, the annuity contract, taken as a whole, does not evidence an intent to impose an implied obligation on Harold to notify Principal of Emily’s death or an implied obligation to return money Harold received in excess of the stated contract amount. Moreover, it is undisputed that this was Principal’s contract. “In Texas, a writing is generally construed most strictly against its author and in such a manner as to reach a reasonable result consistent with the apparent intent of the parties.” Principal, a sophisticated commercial enterprise, did not include express provisions requiring Harold to notify Principal of Emily’s death or to return money received in excess of the stated contract amount. The annuity contract, as written, does not evidence an intent to imply these obligations. Because we conclude the annuity contract, taken as a whole, does not support imposition of an implied obligation on Harold to notify Principal of Emily’s death or an implied obligation to return money Harold received in excess of the stated contract amount, Principal cannot show Harold breached the annuity contract."

The court then reviewed the annuity company’s "money-had-and-received" claim. The court described the claim: 

“Money had and received is an equitable doctrine designed to prevent unjust enrichment. To prevail on a claim for money had and received, the plaintiff need only prove that the defendant holds money which in equity and good conscience belongs to the plaintiff.” 

The court held that the claim was barred by the two-year statute of limitations  because the annuity company did not file its claim within two years of discovering the over-payments.

Finally, the court rejected the annuity company’s fraud by nondisclosure claim. According to the courty, in order to establish fraud by non-disclosure:

“Principal must prove: (1) Harold deliberately failed to disclose material facts; (2) Harold had a duty to disclose such facts to Principal; (3) Principal was ignorant of the facts and did not have an equal opportunity to discover them; (4) by failing to disclose the facts, Harold intended to induce Principal to act or refrain from acting; and (5) Principal relied on the non-disclosure, which resulted in injury.” 

The court held that the annuity company had an equal opportunity to discover its customer’s death:

Principal had an equal opportunity to discover Emily’s death. Principal had internal procedures in place to discover this very type of information. Angela Essick, Principal’s corporate representative, testified that between 2001 and the present, Principal utilized a third-party company and the Social Security Master Index to provide it with a list of names and social security numbers of the deceased on a quarterly basis. Principal would compare these names and social security numbers with those of its annuitants. Principal failed to discover Emily’s death through these channels because it never obtained Emily’s social security number. Principal cannot rely on its internal oversight to claim it did not have an equal opportunity to discover Emily’s death.

Accordingly, the court dismissed all of the annuity company’s claims and rendered judgment for the estate of the customer.

The case has serious implications  for annuity companies specifically, to be sure, but generally for any company involved in the financial services industry.  The case also has serious implications for agents, as they might be expected by their contacting principals to protect them from loss by reporting timely the death of customers.  Agents should be cognizant of changes to agreements and contracts, and should consider these carefully in establishing business practices.

For the consumer, the decision is welcome, but should not be relied upon in expecting protection from continuing to collect and use funds they are not legally entitled to keep; the company in this case may have recovered from the estate had it acted more quickly in filing its claim.

The decision in the case is at first glance surprising, but as is often the case with surprising results, heavily dependent on a set of facts that are unlikely to occur.  Administrators, Executors, and Trustees should follow counsel's guidance regarding treatment of estate funds, and notification of third parties.   

The case is In re Estate of Scott, No. 04-19-00592-CV, 2020 Tex. App. LEXIS 4059 (Tex. App.—San Antonio May 27, 2020, no pet. history).

CMA Brief Outlines Medicare Failure to Provide Home Health Care and Support Family Caregivers

Among the greatest achievements of the Trump Administration is embracing aging in place and home care for seniors under Medicare.  The federal bureaucracy has likewise, taken steps toward Aging in Place and home care for seniors, and these steps might be considered bold if one firmly believes that the first step in solving a problem is acknowledging its existence. The Center for Medicare Advocacy (CMA) recently released an issue brief on Medicare and Family Caregivers that makes acknowledgment of the problem, and suggested solutions easier. 

The Brief "examines the role Medicare currently plays, and could play, in assisting beneficiaries and their family caregivers,"  covers Medicare law, the need for coverage, issues with receiving Medicare home health care services, problems with access to coverage, the limited number of aides, and more. The Brief also discusses Medicare Advantage and in-home services.

The Brief acknowledges that Medicare has a problem:

"As the population ages, and lives longer with chronic conditions, the need for family caregiving, and support for caregivers, is increasing. Concurrently, however, access to Medicare-covered home health aide care continues to decline. This is often true even for individuals who meet the Medicare law’s qualifying criteria. Unfortunately, Medicare beneficiaries are often given inaccurate information regarding Medicare home health coverage in general, and home health aides in particular. Sometimes they are told Medicare simply does not cover home health aides. Harmful misinformation abounds. Further compounding this problem, Medicare does not provide coverage for family caregivers. Coverage is only available for personal care through home health aides, provided through a Medicare-certified home health agency; the individual must have an authorized practitioner’s order, be homebound, and need nursing or physical or speech therapy (citations omitted, emphasis added)."

The Brief then outlines the daunting financial burdens facing Medicare recipients who desire to Age in Place or receive care in-home:

Privately paying for in-home care/aides can cost around $3,000 per month, unaffordable for most Medicare beneficiaries. Basic facts about the Medicare population tell us why. Half of all Medicare beneficiaries live on annual incomes less than $29,650; 25% live on annual incomes below 2 $17,000; 50% have savings less than $73,800; 10% have no saving or are in debt. Data also shows that beneficiaries of advanced age and younger beneficiaries with disabilities have yet lower incomes: Among people ages 65 and older, median per capita income declined steadily with age, dropping from $35,200 between ages 65 to 74 to $22,750 at ages 85 and older. Across the entire Medicare population, median per capita income was considerably lower for beneficiaries under age 65 with permanent disabilities ($19,550) than among seniors. In 2018, about one in seven (15%) of Medicare beneficiaries were under age 65 and generally eligible for Medicare due to a long-term disability. Median income for individuals ages 65 and older was $31,450 per person in 2019, while one in four beneficiaries ages 65 and older had incomes below $18,150. Thus, out-of-pocket health costs, including for in-home care, often pose an access barrier, particularly for beneficiaries in fair or poor health. When Medicare coverage is unavailable or unfairly denied, beneficiaries are often unable to afford the home care they need. This places additional, avoidable stress on the beneficiary, family, and family caregivers. Unable to live safely in the community, it may also lead to preventable health complications, injuries, hospitalizations, and nursing home admissions (citations omitted, emphasis added).

CMA, therefore, made a series of recommendations: 

"1. Ensure the scope of current allowable home health benefits, generally, and home health aides, specifically, are actually provided. Simply put, ensure that current law is followed;

2. Create a new stand-alone home health aide benefit that would provide coverage without the current skilled care or homebound requirements, using Medicare’s existing infrastructure as the vehicle for the new coverage; and

3. Identify other opportunities for further exploration within and without the Medicare program, including additional Medicare revisions, demonstrations, and initiatives overseen by the Center for Medicare and Medicaid Innovation (CMMI)."

After providing some actual examples, the Brief provides insights into other additions to Medicare that would provide more services to beneficiaries.  The conclusion  provides that:

 "Medicare home health coverage is not being implemented to the full extent of the law. If it were, countless beneficiaries and families would be better off. Nonetheless, at best, the current Medicare benefit leaves far too many patients and caregivers behind. In order to provide quality home-based care for individuals, and support for their caregivers, significant changes are needed to the Medicare program and the broader health insurance system." 

The Brief is part of collaborative work to advance the RAISE Family Caregivers Act passed in 2018.  The RAISE Act directs the Department of Health and Human Services to develop and maintain a national family caregiver strategy that identifies actions and support for family caregivers in the United States. CMA's issue brief explores the role Medicare does, and could, play in supporting older and disabled beneficiaries and their caregivers. The issue brief was written with support from The John A. Hartford Foundation.

Hospice Provides Comfort for Veterans and Their Families

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The following is a reprint of an excellent article from Veterans Family Matters and VAGA News:

At the end of life, every patient is unique. When a patient with an advanced illness is ready to start the conversation, hospice care focuses on improving quality of life. When that patient is a veteran, providing appropriate care requires insight into the challenges they face throughout life, not only at its end.

In general, hospice patients are estimated by their physicians to have six months or less to live. But receiving hospice care doesn't mean "giving up" or compromising comfort and dignity. As part of the Medicare Part A hospice benefit, hospice patients are entitled to whatever their terminal diagnosis requires. This includes medications, home medical equipment, supplies, supportive services and care from a team of experts.

The interdisciplinary hospice team-nurse, hospice aide, social worker, physician, chaplain, bereavement specialist and volunteers-provides clinical, spiritual and psychosocial care to the patient and their family wherever they call home. 

Unique Care for Veterans

Veterans face experiences throughout their military careers that test the limits of the human body and mind. The repercussions of these experiences may linger long after a veteran's service ends, and their needs at the end of life can be severe and varied.

Hospice experts are trained to support these difficult circumstances, including financial and benefit concerns, post-traumatic stress disorder, unresolved issues associated with military service, depression and suicide. Veteran liaisons ensure the patients have access to every benefit to which they're entitled.

Some hospice providers also participate in We Honor Veterans, a program developed by the National Hospice and Palliative Care Organization and the VA to improve care for vets in hospice. Veterans are shown how much their service is valued through special events and activities, including trips to the Washington, DC, war memorials via the Honor Flight Network®.

 For patients with advanced illness, hospice helps make the best of those final months, weeks and days. Hospice patients enjoy being home among loved ones, free of medical expenses, and in the care of a team dedicated to their comfort and dignity.

Larry Robert, Bereavement Services Manager/Veteran Liaison

VITAS Healthcare of Atlanta

www.vitas.com

Covid-19 and Elder Abuse- Increasing Risk to an Already Vulnerable Population.

Coronavirus disease 2019 (COVID-19) is particularly destructive to older adults.  In addition to the heightened risk of morbidity and mortality, there has been a massive increase in reports of elder abuse during the pandemic.  Reports of elder abuse range from financial scams to incidents of family violence.  Warnings of abuse have been issued by the Federal Trade Commission (FTC) and the American Bar Association (ABA), as well as countless advocacy groups and service organizations.

The Centers for Disease Control and Prevention (CDC) defines elder abuse as an intentional act or failure to act by a caregiver or another person in a relationship involving an expectation of trust that causes or creates a risk of harm to an older adult. Abuse of older adults can be physical, emotional, financial, neglect, or any combination of these.

This knowledge regarding the health risks likely exacerbates already high rates of depressive and anxiety symptoms,resulting in an even greater multidimensional state of vulnerability. The many necessary social distancing programs currently in place additionally create a growing dependency on others for the completion of daily living activities, and this dependency can be viewed as another vulnerability.The documented negative health effects of social isolation and loneliness in old age will undoubtedly intensify during the pandemic.  Social isolation is one of the strongest social characteristics contributing to the risk of elder abuse.

Shelter-in-place” orders in effect to promote social distancing, and increased dependency of older adults on others, means the potential for elder abuse is  heightened; perpetrators of abuse are often close relations.  The risks also increase as more strangers opportunistically attempt to take advantage of the fearful situation to exploit older adults for financial gain. 

Older adults with dementia or declining cognitive abilities are known to have much  higher risk for abuse and neglect. With the shuttering of adult daycare programs,senior centers, and outpatient programs occurring concomitantly with adult children working from home, the possibility of unbuffered time together may contribute to circumstances leading to greater incidents of abuse.  Add to that the inability or hesitance of younger family members to check in or monitor their elderly family members, and the risk of abuse by third parties also likely increases. 

One cannot discuss elder abuse without exploring both ageism and confirmation bias.  The World Health Organization (WHO) defines ageism as “the stereotyping, prejudice,and discrimination against people on the basis of their age.  A recent systematic review found ageism to be associated with numerous negative health consequences worldwide. The review, which is the most comprehensive survey of ageism, to date, included over 7 million participants.  The participants spanned five continents, and concluded ageism to be pervasive, harmful, and arguably a primary underlying contributing factor in elder abuse. According to the survey, ageism led to significantly worse health outcomes in 95.5% of the studies and 74.0% of the 1,159 ageism-health associations examined. 

The coronavirus pandemic has inspired ageist thoughts and comments given its predilection toward harming older adults. As the consequences of necessary social distancing increase, ageist views will continue to rise to the surface.  We have already witnessed the potentially  tragic and unjust utilitarian conversations regarding “the needs of the many versus the needs of the few.”  Add to this conversation lackluster investigation and enforcement arising from claims of abuse, and a dangerous indifference to the claims, needs, and goals of the elderly, and the pandemic provides a recipe of ingredients making the elderly only more vulnerable and susceptible to abuse.

CMS COVID-19 Guidance Should Please Nursing Homes and Concern Everyone Else

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." 

Nursing homes can breathe easier since the Guidance includes no mandatory language directed at 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. 

Unless you are an operator, the Guidance is concerning.  Does the Guidance mean that a nursing home should be able to test everyone before easing visiting restrictions, but can choose not to do so?   

 CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan on page 4 of the Guidance.  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.  No  hard numbers for such oversight suggested for states, and of course, as a result no hard numbers are in place for nursing homes.

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."   The Memorandum apparently leaves determination of what constitutes a significant outbreak to the states or the nursing homes themselves, as well as application and enforcement of the recommendation 

There is also much missing.  For example,  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. There is nothing in the latest CMS guidelines for testing of and segregation of residents transferred from a hospital, and there is nothing that prevents states from compelling institutions to accept transfers from hospitals or other government entities of COVID-19 infected patients (even younger than one might normally find in such institutions), thereby risking spread of the contagion within an institution.  

What is most comforting, is the detail the Memorandum provides, and the depth to which "thinking" regarding COVID-19 transmission has evolved.  It is important to remember that . although disease transmission protocol is not new, COVID-19, and its unique and intense challenges only became known less than five months ago, and, of course, we are still learning new details. 

Skilled Nursing Occupancy Slips as COVID-19 Rages

The following is reprinted from Mcknight's Long-Term Care News:

Occupancy at skilled nursing facilities took a hit following the onset of the coronavirus pandemic after showing signs of stabilization for several quarters, new data from the National Investment Center for Seniors Housing & Care (NIC) reveals. 

The NIC Intra-Quarterly Snapshot released Tuesday found that occupancy for nursing care facilities fell 2.2 percentage points to 84.7% in April, the first full month of the pandemic. In April 2019, stabilized occupancy was 87% for nursing care.

The decline shows the effects the pandemic has had on operators, according to Beth Mace, chief economist and director of outreach for NIC. Several nursing home companies, such as Sabra Healthcare REIT and Omega Healthcare, have reported significant drops in occupancy following COVID-19.

“That decline again happened in April and that’s when the first beginnings of COVID were really starting to impact the markets. The drop that we see in skilled nursing does reflect in occupancy and a change in move-ins, but it also reflects, in the case of skilled nursing, the fact that a lot of elective surgeries were postponed,” Mace told McKnight’s Long-Term Care News. 

“You often see skilled nursing properties work with patients as they come out of hospitals from elective surgeries for rehab. That had an impact on this data, as well. That explains some of the drop, that 220 basis point decline,” she added. It’s tough to predict how long providers may experience this trend in occupancy since that depends on the course of COVID-19, Mace said. 

“I think it’s sort of beyond anyone’s crystal ball,” Mace explained. “It’s largely a function of the coronavirus itself and how quickly we’ll get a vaccine, whether there will be a second wave, whether the flattening of the curve will continue, how much testing [and tracing] we can do, the extent of [personal protective equipment] out there.” 

Mace said financial outlooks for providers will depend on several variables, including the types of reserves they have and the position they had as they went into the pandemic. 

The report is part of a broader mission to create transparency and provide insights into the current conditions, according to Mace. NIC is planning to release additional occupancy data over the next several weeks and months to help assess market conditions as operators continue to work through the public health crisis. 

“The COVID crisis really pushed us at NIC to try to get the data out as fast as we could to try to inform the market of what’s going on,” Mace said.