Nearly 40% of SNF's Reported No 2020 COVID-19 Deaths; SNF Risk of Death Still Ten Times Higher than Independent Living

In rare good news regarding health outcomes in nursing homes, particularly during the pandemic, a recent study found that nearly 40% of nursing homes reported no COVID-19 deaths during 2020.  The new study was conducted by NORC at the University of Chicago.  The analysis, which was funded by the National Investment Center for Seniors Housing & Care, estimated 2020 COVID mortality rates in seniors housing by level of care and compared the rates to seniors who lived in non-congregate settings. Findings were based on data from five states.

Thirty-nine percent of skilled nursing facilities experienced no COVID-related deaths during the year, while about two-thirds of independent living, 64% of assisted living and 61% of memory care prosperities experienced no related deaths.   The analysis also found that COVID-19 deaths across senior housing correlated with how ill the average resident was and the amount of care they needed: 

“The facts include that COVID-19 transmission is more likely with close person-to-person contact and mortality increases with age and comorbidities. This study shows senior housing isn’t homogeneous, and mortality was higher in property types whose residents, on average, are sicker and require higher levels of care,”

Brian Jurutka, NIC’s president and CEO, said in a statement. 

SNFs and memory care had the highest adjusted mortality rates from COVID-19 with 59.6 and 50.4 deaths per 1,000 residents, respectively.

Resident deaths in independent living settings were statistically comparable to the rates of death for older adults living in non-congregate settings in the same geographic area. Independent living had average adjusted mortality rates of 5.9 per 1,000. That’s compared to the 6.7 per 1,000 found for seniors living in the same counties. For Aging in Place Planning purposes, that means that independent and non-congregant settings showed no higher mortality rate. 

The analysis included data from 3,817 senior housing properties across 113 counties in five states: Colorado, Connecticut, Florida, Georgia, and Pennsylvania.

Source: D. Brown, "39 percent of nursing homes had no COVID deaths: report,"  McKnight's Long-term Care News (June 3, 2021) (last accessed 6/3/2021). 

Guardian Lawfully Refused Family's Request to Remove Ward from Nursing Home Amidst Pandemic

COVID-19 may have revealed with horrific and heart-breaking clarity just how deeply is the bias for institutional care in our legal and health care systems.  A recent Maryland case, arising from pandemic decision-making, may provide an object lesson regarding this bias, and is another in a string of cases revealing the dangers of guardianship. 

Mary Boone suffered from dementia and lived in a nursing home. Due to discord between Ms. Boone’s two daughters, the court appointed an independent guardian for Ms. Boone. In April 2020, one of Ms. Boone’s daughters, Sherry Feggins, filed an emergency motion to remove her mother from the nursing home and relocate her to Ms. Feggins’ house due to concerns about COVID-19 in the nursing home.

The guardian opposed the motion, arguing that Maryland’s governor had ordered people to shelter in place. She also noted that Ms. Feggins did not provide a care plan for Ms. Boone at her house. Ms. Boone’s doctor submitted a statement that moving Ms. Boone would worsen her dementia and put her and the facility at risk for COVID-19. Ms. Feggins argued, additionally, that her mother had suffered abuse at the facility. The court denied Ms. Feggins’ motion, and Ms. Feggins appealed.

The Maryland Special Court of Appeals affirmed, holding that it was in Ms. Boone’s best interest to remain at the facility. 

The court ruled that “it is the welfare of the ward that is of chief concern -- not the wishes of the relatives nor the convenience of the guardian.” The Court determined that Ms. Feggins did not provide sufficient proof that changing Ms. Boone’s residence would be in her best interest.  In the Matter of Boone (Md. Ct. Spec. App., No. 432, May 13, 2021).

An Aging in Place Plan with a clear appointment of a primary decision-maker,  providing for a succession of decision-makers, and conferring authority to implement aging in place plans and preferences, may have prevented this case and controversy.   

Guilfoyle: "Only a Sick Society Would Tolerate Legalized Abuse of Vulnerable Citizens:" Highlights Need for Guardianship Reform

 

The National Association to STOP Guardian Abuse (NASGA) is an excellent organization, and we often share the organization's blog posts on the firm's Facebook Page.  It is rare that the issue of guardianship abuse receives intense national attention and scrutiny.  Perhaps, such a prominent figure speaking out will invite much needed acknowledgment of a national disgrace. You can read the  NASGA blog post here.    

Family Ties? Estrangement Common; Complicates Aging in Place Planning

Aging in Place Planning demands careful attention to the personal social safety net available to a senior.  This social safety net, meaning family and friends who are willing, available, and able to help a vulnerable senior, is vital in protecting a senior from avoidable and unnecessary institutionalization.

Complicating planning is what appears to be a rising incidence of familial estrangement, and the hesitance on the part of seniors to disclose or acknowledge estrangement where it exists.  Add to these the possible callousness of some family members, whether or not estranged, and a senior has an outrageous prescription for disaster.  This blog has previously discussed familial callousness and abandonment, in  shocking and heart-breaking examples.  See, for example, "Seniors with Dementia Abandoned by Family Caregivers at Hospitals and Homeless Shelters."  This latter article  describes a not-uncommon pre-COVID-19, practice of putting demented family members on planes with one-way tickets to major metropolitan centers, hoping that they will be collected and cared for by authorities.   

The Economist, recently asked, "How many American children have cut contact with their parents?" The subtitle to the article suggests an answer: "A young field of research suggests it is surprisingly common."  A recent study conducted by Cornell University, for example, found that 27% of adult Americans are estranged from a close family member. Karl Pillemer, a professor of sociology who led the research and wrote a book about its findings called “Fault Lines”, says that because people often feel shame, the real figure is likely to be higher. The relationship most commonly severed is that between parent and adult child, and in most cases "it is the child who wields the knife."

Unfortunately, family estrangement has been a subject of research for only the past decade, and as a result, there is no data to show whether it is becoming more common. Many sociologists and psychologists think it is.  Divorce, for example, has long been understood to  heighten the risk of other family fractures. Joshua Coleman, a psychologist and the author of “Rules of Estrangement," found in a recent survey of 1,600 estranged parents that more than 70% had divorced their child’s other parent (children of divorce are more likely to dump their fathers, he notes). In recent years, though  America's divorce rate has actually fallen, other trends are making parent-child estrangements more likely. 

The Economist explains:

A rise in individualism that emphasizes personal happiness is the biggest factor. People are increasingly likely to reject relatives who obstruct feelings of well-being in some way, by holding clashing beliefs or failing to embrace those of others. Personal fulfilment has increasingly come to displace filial duty, says Dr Coleman. Whereas families have always fought and relatives fallen out, he says, the idea of cutting oneself off from a relative as a path to one’s own happiness seems to be new. In some ways it is a positive development: people find it easier to separate from parents who have been abusive. But it can also carry heavy costs.

More individualistic than most rich countries, America also has a higher divorce rate. This suggests adult-child separation is more common in America than it is in other places. “My impression is that this isn’t considered much of a problem in many European countries,” says Dr Pillemer. Geography also plays a part. Though people move from state to state less than they used to, America remains one of the most geographically mobile countries in the world. The vast distances often involved allow people who want to leave their families behind to do so.

.     .     .

Those who decide to break off contact with their parents find support in a growing body of books (often with the word “toxic” in the title), as well as online. Threads on internet forums for people who want to break ties with their parents reveal strangers labelling people they have never met as narcissistic or toxic and advising an immediate cessation of contact. This may make it easier to shelve feelings of guilt.

Therapy has played a role too, says Dr Coleman. A lot of therapy in America emphasizes the role family dysfunction plays in personal unhappiness. Though it is often a factor, it is also often not, he says. “As therapists we need to do due diligence on what our patients say. Just as I wouldn’t take at face value a parent’s depiction of their parenting as flawless, I wouldn’t assume an adult child’s claim that a parent is ‘toxic’ should be accepted without further inquiry,” he says. He is launching an online programme with a British researcher that helps therapists and others develop techniques for working with those who have become estranged from close relatives.

Raising awareness about the issue in this way is likely to be important, and not only because some broken bonds may be fixable. Parent-child estrangement has negative effects beyond the heartbreak it causes. Research suggests that the habit of cutting off relatives is likely to spread in families. But most immediately, it is likely to exacerbate loneliness in old age.

Dr. Pillemer, who is also a professor of gerontology in medicine at Weill Cornell Medicine, says the idea for the research was sparked by a one-to-one survey he did of elderly people. “I discovered that dozens had been cut off by their children,” he says. Often, they did not want to admit it. People who work with the elderly should consider the possibility, he says, that an old person is not receiving the support and solace that might be assumed about someone who has adult children. “Mrs Smith may say she has two daughters,” he says. “She is quite likely not to add that she never sees them.”

Heartbreaking. 

See: How many American children have cut contact with their parents?, The Economist, May 22, 2021 (last accessed June 3, 2021).  

Deaths from Nursing Home Neglect Surged Amid the Pandemic

As more than 180,000 of the nation’s long-term care residents and staff died of COVID-19 in a pandemic that has pushed staffs to the limit, advocates for the elderly say a tandem wave of death separate from the virus has quietly claimed untold tens of thousands more.  The most common causes included neglect occasioned by overburdened workers unable to provide necessary care.

Matt Sedensky and Bernard Condon, writing for the Associated Press (AP), told the soul wrenching story of David Wallace: 

"When COVID-19 tore through Donald Wallace’s nursing home, he was one of the lucky few to avoid infection. He died a horrible death anyway."

Hale, hearty, and reportedly happy before the pandemic, the 75-year-old retired Alabama truck driver became so malnourished and dehydrated that he dropped to 98 pounds.  His son reported that he looked like he’d "been in a concentration camp."  No wonder: septic shock suggested an untreated urinary infection, E. coli in his body from his own feces hinted at poor hygiene, and aspiration pneumonia suggested that  Wallace, who required assistance with meals, had  choked on his own food.  All of these conditions developed while Wallace was under the control, custody, and care of a nursing home.  

Kevin Amerson, Walace's son indicted the institution:

“He couldn’t even hold his head up straight because he had gotten so weak. They stopped taking care of him. They abandoned him.”

According to the AP, as nursing homes were opening up to family visitations nursing home watchdogs were being flooded with reports of residents kept in soiled diapers so long their skin peeled off, left with bedsores that cut to the bone, and allowed to wither away in starvation or thirst.

Beyond that, AP interviews with dozens of people across the country reveal swelling numbers of less clear-cut deaths that doctors believe have been fueled not by neglect but by isolation.  The AP described a common mental state plunged residents into despair as a result of prolonged isolation.  The AP noted that many residents cause of death as reported on death certificates was simply “failure to thrive.”

A nursing home expert who analyzed data from the country’s 15,000 facilities for the APs investigation reportedly estimated that for every two COVID-19 victims in long-term care, there is another who died prematurely of other causes. Those “excess deaths” beyond the normal rate of fatalities in nursing homes could total more than 40,000 just since between last March and November.

The industry's record was not stellar prior to the pandemic; studies have indicated that one 

These extra deaths are roughly 15% more than you’d expect at nursing homes already facing tens of thousands of deaths each month in a normal year.

“The healthcare system operates kind of on the edge, just on the margin, so that if there’s a crisis, we can’t cope,” Stephen Kaye, a professor at the Institute on Health and Aging at the University of California, San Francisco, who conducted the analysis, told the AP. “There are not enough people to look after the nursing home residents,” he admitted.

Comparing mortality rates at homes struck by COVID-19 with ones that were spared, Kaye also found that the more the virus spread through a home, the greater the number of deaths recorded for other reasons. In homes where at least 3 in 10 residents had the virus, for example, the rate of death for reasons besides the virus was double what would be expected without a pandemic.

That suggests the care of those who didn’t contract the virus  suffered, possibly  as healthcare workers were consumed attending to residents ill from COVID-19 or were left short-handed as the pandemic infected employees themselves.

Chronic understaffing at nursing homes has been one of the hallmarks of the pandemic, with a few homes even forced to evacuate because so many workers either tested positive or called in sick. In 20 states where virus cases are now surging, federal data shows nearly 1 in 4 nursing homes reported staff shortages.

The nursing home trade group American Health Care Association disputed that there has been a widespread inability of staff to care for residents and dismissed estimates of tens-of-thousands of non-COVID-19 deaths as “speculation.”

Dr. David Gifford, the group’s chief medical officer, said the pandemic created “challenges” in staffing, particularly in states like New York and New Jersey hit hard by COVID-19, but added that, if anything, staffing levels have improved because of a drop in new admissions that has lightened the patient load.

“There have been some really sad and disturbing stories that have come out,” Gifford said, “but we’ve not seen that widespread.”

Another industry group, LeadingAge, which represents not-for-profit long-term care facilities, said staffing challenges are real, and that care homes are struggling in the face of federal inaction to provide additional stimulus money to help pay for more workers.

“These incidents, stemming from the challenges being faced by too many committed and caring nursing home providers during this pandemic, are horrific and heartbreaking,” said Katie Smith Sloan, LeadingAge’s president. “I hope that these tragedies will wake up politicians and the public.”

When facilities sealed off across the country in March, advocates and inspectors were routinely kept out too, all while concerning reports trickled in, not only of serious injuries from falls or major medical declines, but of seemingly banal problems that posed serious health issues for the vulnerable.

Mairead Painter, Connecticut’s long-term care ombudsman, said with dentists shut out, ill-fitting dentures went unfixed, a factor in mounting accounts of malnutrition, and with podiatrists gone, toenails went untrimmed, posing the possibility of painful conditions in diabetes patients.

Even more widespread, as loved ones lost access to homes, was critical help with residents’ feeding, bathing, dressing and other tasks. The burden fell on aides already working tough shifts for little pay.

“I don’t think anyone really understood how much time friends and family, volunteers and other people spent in the nursing home and supplemented that hands-on care,” Painter said.

Strict rules barring in-person visitation persisted in many homes, but as families and advocates have inched back inside, they’ve frequently been stunned by what they found.

The AP shared the  story of June Linnertz, who, when she returned to her father’s room at Cherrywood Pointe in Plymouth, Minnesota, for the first time in three months, she was struck by a blast of heat and a wall thermometer that hit 85 degrees. His sheets were soaked in sweat, his hair was plastered to his head and he was covered in bruises.  Linnertz would learn these bruises came from at least a half-dozen falls. His nails had been uncut so long, they curled over his fingertips and his eyes crusted over so badly he couldn’t get them open.  

Linnertz father, 78-year-old James Gill, was found screaming, thinking he had gone blind, and Linnertz grabbed an aide in a panic. She snipped off his diaper, revealing genitals that were deep red with skin sloughing off.

Two days later, Gill died from Lewy Body Dementia, according to a copy of the death certificate provided the AP. Linnertz told the AP that she always expected her father to die of the condition, which causes progressive memory and movement loss, but she never thought he would end his days in so much needless and avoidable pain and suffering.

“What the pandemic did was uncover what was really going on in these facilities. It was bad before, but it got exponentially worse because you had the squeeze of the pandemic,” Linnertz said. “If we weren’t in a pandemic, I would have been in there... This wouldn’t have happened.”

The assisted living facility’s parent company, Ebenezer, told the AP: “We strongly deny the allegations made about the care of this resident,” adding that it follows “strict regulatory staffing levels” required by law.

Cheryl Hennen, Minnesota’s long-term care ombudsman, said dozens of complaints have poured in of bedsores, dehydration and weight loss, and other examples of neglect at various facilities, including a report of a man who choked to death while he went unsupervised during mealtime. She fears many more stories of abuse and neglect will emerge as her staff and families are able to return to homes.

“If we can’t get in there, how do we know what’s really happening?” she said. “We don’t know what we can’t see.”

The nagging guilt of unnecessary death is one Barbara Leak-Watkins understands. It was just in February that her 87-year-old father, Alex Leak, went for a check-up and got lab work that made Leak-Watkins think the Army veteran, contractor and farmer would be with her for a long time to come.

You’re going to outlive all of us,” Leak-Watkins remembered the doctor saying.

As nursing home outbreaks of COVID-19 proliferated, Leak-Watkins prayed that he be spared. The prayer was answered, but Leak was nonetheless found unresponsive on the floor at Brookdale Northwest in Greensboro, North Carolina, his eyes rolled back and his tongue sticking out.

After he arrived at the hospital, a doctor there called Leak-Watkins with word: Her father had gone so long without water his potassium levels rocketed and his kidneys were failing. He died two weeks later of lactic acidosis, according to his death certificate, a fatal buildup of acid in the body when the kidneys stop working. For a man whose military service so drilled the need for hydration into him that he always had a bottle of water at hand, his daughter had never considered he could go thirsty.

“The facility is short-staffed...underpaid and overworked,” Leak-Watkins said. If they “can’t provide you with liquids and fluids to hydrate yourself, there’s something wrong.”

The daughter is considering filing a lawsuit but a North Carolina law granting long-term care facilities broad immunity from suits claiming negligence in injuries or death during the pandemic could stymie her efforts. Similar laws and executive orders have been enacted in more than two dozen states.  Critics say the laws are a free pass for neglect.

The owner of the father’s facility, Brookdale Senior Living, said it couldn’t comment on individual cases but that “the health, happiness and wellbeing of each of our residents will always be our priority.”

Around the country, the heartache repeats, not only among families who have already buried a member, but also those who feel they are watching a slow-moving disaster.

In Hendersonville, Tennessee, Tara Thompson was able to see her mother for the first time in more than six months when she was hospitalized in October. The 79-year-old had dropped about 20 pounds, her eyes sunken and her legs looking more like forearms. Doctors at the hospital said she was malnourished and wasting muscle. There were bedsores on her backside and a gash on her forehead from a fall at the home. Her vocabulary had shrunk to nearly nothing and she’d taken to pulling the blankets over her head.

The facility Thompson’s mother lived in had been engulfed in virus outbreaks, with more than half its residents testing positive and dozens of employees infected, too. She never caught it, but shaken by the lack of care, Thompson transferred her mother to a new home.

“It has nothing to do with the virus. She’s declined because she’s had absolutely no contact with anybody who cares about her,” she said. “The only thing they have to live for are their families and, at the end of their life, you’re taking away the only thing that matters to them.”

“Failure to thrive” was among the causes listed for Maxine Schwartz, a 92-year-old former cake decorator whose family had been encouraged prior to the lockdown by how well she’d adjusted to her nursing home, Absolut Care of Aurora Park, in upstate New York. Her daughter, Dorothy Ann Carlone, would coax her to eat in the dining room each day and they’d sing songs and have brownies back in her room. Several times a week, Schwartz walked the length of the hallway for exercise.

When the lockdown began March 13, Carlone feared what would happen without her there. She pleaded to staff: “If you don’t let me in to feed her, she won’t eat, she will starve.”

On March 25, when a staffer at the home sent a photo of Schwartz, Carlone was shocked how thin she was. Carlone was told her mother hadn’t been eating, even passing up her favorite brownies.

Two days later, Carlone got an urgent call and when she arrived at the home, her mother’s skin was mottled, she was gasping for breath and her face was so drawn she was nearly unrecognizable. An hour later, she died.

Dawn Harsch, a spokeswoman for the company that owns Absolut Care, noted a state investigation found no wrongdoing and that “the natural progression of a patient like Mrs. Schwartz experiencing advanced dementia is a refusal to eat.”

Carlone is unconvinced.

“She was doing so good before they locked us out,” Carlone said. “What did she think when I wasn’t showing up? That I didn’t love her anymore? That I abandoned her? That I was dead?”

Before the lockdown, Carlone’s mother would wait by an elevator for her to arrive each day. She thinks of her mother waiting there when her visits stopped and knows the pain of the isolation must have played a role in her death.

“I think she gave up,” she said.

You should never give up.  Plan to age in place.  Learn what aging in place planning entails, develop a plan, and then implement the plan. If you won't for yourself, do it for those whom you love, who may be ravaged by the consequence of there being no plan when it is needed.    

Source: Sedenski and Condon, "Not just COVID: Nursing home neglect deaths surge in shadows," AP NEWS (November 19, 2020) (last accessed 4/15/2021). 

Medicaid Denied Due to Land the Applicant Cannot Sell - Considering Asset Illiquidity

 

An Ohio appeals court has ruled that a Medicaid applicant’s land is a countable resource even though the applicant  is unable to sell the land. Cowan v. Ohio Dept. Jobs & Family Servs. (Ohio Ct. App., 1st Dist., No. C-200025, May 26, 2021).

Mary Cowan entered a nursing home, applied for Medicaid, and named the nursing home as her authorized representative. Ms. Cowan owned two parcels of land that she listed for sale, but she was unable to find any buyers. The county auditor, however, valued the parcels at $3,000 each. 

Unless an exclusion applies, Ohio’s Medicaid guidelines provide that individuals are not eligible for benefits if the value of their personal and real property exceeds $2,000. The $6,000 value assessed by the county auditor exceeded the regulatory threshold, so the state denied her Medicaid benefits for excess resources due to the property.

Ms. Cowan appealed, through the state administrative process, arguing that because she couldn’t sell her land, she did not have the legal ability to access the resource. She argued that Federal SSI regulations explicitly state that a property that cannot be liquidated is not a resource. The state denied the appeal, and Ms. Cowan appealed to court. The trial court ruled that Ms. Cowan had excess resources. Ms. Cowan appealed.

The Ohio Court of Appeals, First District, held that the state properly denied Ms. Cowan’s Medicaid application for excess resources.  The Court held that the federal SSI regulation does not apply to the state Medicaid case. According to the court, under state Medicaid law, “if the applicant has the legal authority to sell the property, the plain language of the Code renders it a countable resource.”  Ms. Cowan had the legal authority to sell the property, evidenced by the fact that she tried to sell the property.  The court noted that Ohio clearly concerns itself neither with practical value, or the ability of the seller to find a buyer: “[w]hether [the applicant] was able to find a purchaser is a wholly different consideration from what the regulation contemplated, namely whether [the applicant] had the legal authority to sell the properties in the first place.” In other words, even if the asset is illiquid (cannot be readily converted to cash) the asset is, nonetheless, countable and potentially disqualifying.  

The case illustrates the importance of considering the illiquid assets comprising the estate, and dealing with these assets before they create challenges or liabilities.    

HAVE A BLESSED MEMORIAL DAY

Originally named Decoration Day, Memorial Day is a call to remember those servicemen and women who gave their lives in service of the United States of America. The holiday was originally conceived as a solemn day of honor for Civil War dead, proclaimed on May 5, 1868 by national commander of the Grand Army of the Republic General John Logan. The date was chosen specifically because it did not fall on the anniversary of any specific battle. In his proclamation on Decoration Day, Logan stated, “The 30th of May, 1868, is designated for the purpose of strewing with flowers, or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village and hamlet churchyard in the land.”

While there is some confusion as to when and where Memorial Day actually began, New York was the first state to recognize the holiday in 1873, with all northern states following by 1890. Prior to World War I, Decoration Day, or Memorial Day, as it came to be called, was primarily a “northern state” holiday, with southern states honoring their war dead on different days. At the close of World War I, the holiday transformed from a day to honor Civil War dead to a day to honor all Americans who died fighting in any war.  The National Holiday Act of 1971 established our current Memorial Day, falling on the last Monday in May. 

Additionally, in December of 2000 The “National Moment of Remembrance” resolution was passed. This resolution asks that at 3 pm local time all Americans “voluntarily and informally observe in their own way a Moment of Remembrance and respect, pausing from whatever they are doing for a moment of silence or listening to Taps.”

In 1915, inspired by the poem “In Flanders Fields,” Moina Michael replied with her own poem:

        We cherish too, the Poppy red 

That grows on fields where valor led,

It seems to signal to the skies

That blood of heroes never dies.

Michael then conceived of an idea to wear red poppies on Memorial day in honor of those who died serving the nation during war. She was the first to wear one, and sold poppies to her friends and co-workers with the money going to benefit servicemen in need. See more on the significance of the Red Poppy.

Later Madam Guerin from France was visiting the United States and learned of this new custom started by Ms. Michael. When she returned to France she made artificial red poppies to raise money for war orphaned children and widowed women. This tradition spread to other countries. In 1921, the Franco-American Children’s League sold poppies nationally to benefit war orphans of France and Belgium. The League disbanded a year later and Madam Guerin approached the VFW for help.

Shortly before Memorial Day in 1922 the VFW became the first veterans’ organization to nationally sell poppies. Two years later their “Buddy” Poppy program was selling artificial poppies made by disabled veterans. In 1948 the US Post Office honored Ms. Michael for her role in founding the National Poppy movement by issuing a red 3 cent postage stamp with her likeness on it.

Our staff, family, and friends, salute the men and women who gave their all for us.  

Have a , safe and enjoyable Memorial Day commemoration.

CMS Requires LTC Providers Report Weekly COVID Vaccine Data; Data Made Public

Long-term care facilities are required to report weekly data on COVID-19 vaccination status for both residents and staff under a new interim final rule, putting more pressure on providers to remain transparent with their efforts. 

The Centers for Medicare & Medicaid Services (CMS) announced the new regulation, which apply to long-term care facilities and intermediate care facilities for individuals with intellectual disabilities.  Enforcement begins June 14. 

As data becomes available, CMS will post facility-specific vaccination status information so that it can be seen openly by the public on CMS’ COVID-19 Nursing Home Data website, the agency said.

CMS added that the new mandate is designed to assist in monitoring uptake among residents and staff, and aid in identifying facilities that may be in need of additional resources to respond to the COVID-19 pandemic.

LTC facilities are already required to report COVID-19 testing, case and mortality data to the National Healthcare Safety Network for residents and staff, but they have not been required to report vaccination data.

“These new requirements reinforce CMS’ commitment of ensuring equitable vaccine access for Medicare and Medicaid beneficiaries,” Lee Fleisher, MD, CMS’ Chief Medical Officer and director of the Center for Clinical Standards and Quality, said in a statement. 

“Today’s announcement directly aids nursing home residents and people with intellectual or developmental disabilities who have been disproportionately affected by COVID-19. Our goal is to increase COVID-19 vaccine confidence and acceptance among these individuals and the staff who serve them,” he added. 

Some states had already been collecting and monitoring such data, and Maryland last week said it would require its providers to feed information to a public-facing dashboard.

A growing movement to track

CMS had hinted that a national vaccination reporting requirement could be in the pipeline for providers. The agency put forward a new SNF Quality Reporting Program measure as part of its Skilled Nursing Facility Prospective Payment System proposal for fiscal year 2022. 

The proposed rule would have require skilled nursing facilities to report staff COVID-19 vaccination rates to the Centers for Disease Control and Prevention National Healthcare Safety Network starting Oct. 1. Currently, staff vaccination reporting is voluntary.

The agency on Tuesday added that it’s also seeking comment on expanding the reporting policy to other congregate care settings, such as assisted living facilities, psychiatric residential treatment facilities and group homes.

Regulators said they are specifically interested in comments on “potential barriers facilities may face in meeting the requirements, such as staffing issues or characteristics of the resident or client population, and potential unintended consequences.”

The rule also requires providers to report the use of therapeutics administered to residents for treatment of COVID-19. The agency said reporting their use will help government officials and other stakeholders “monitor the prevalence of these treatments, their impact on reducing the effect of COVID-19 on nursing home residents, and support allocation efforts to ensure that nursing homes have access to supplies to meet their needs.”

Tuesday’s rule would have been more expansive, CMS added, but logistical concerns kept the range limited.

“Because we are not able to guarantee sufficient availability of single dose COVID-19 vaccines at this time, or in the near future, to meet the potential demands of facilities with relatively short stays, we are focusing on facilities that have longer term relationships with patients and are thus also able to administer all doses of and track multi-dose vaccines,” they said in a summary of the interim final rule, scheduled to be published in the Federal Register on Thursday.

Source: D. Brown, "BREAKING: New CMS rule requires LTC providers to report weekly COVID vaccine data, which will be made public," McKnight's Long-term Care News (May 11, 2021) (last accessed 5/11/2021).

Beneficiaries of Trust Can Contest Trust Protector’s Amendment On Grounds of Undue Influence

A "trust protector" is a person or institution appointed by a settlor (a person creating a trust) to protect the trust, or more directly, to protect a vulnerable beneficiary of the trust.  The original idea behind the protector was to appoint somebody who could oversee the Trustee, and, if necessary, terminate the Trustee for misconduct without resorting to a court process.

This planning device is increasingly common, and, as you might expect, takes on different characteristics in design and implementation within different trusts.  Originally crafted, the only power conferred to a trust protector was discretion to terminate a trustee. As design of trusts evolved, protectors were conferred additional powers, such as the power to appoint the successor Trustee if one is fired, or even, sometimes, to amend a trust.

With the rise in the number of trust protectors appointed by trust instruments, it is inevitable that protectors will be embroiled in legal disputes, notwithstanding that the intention of the planning device is to reduce such disputes, and more, to avoid resort to court for a remedy for misconduct, particularly, unresponsive, slow, or distracted trustees.  Of course, the more authority conferred to a trust protector, the more likely any individual  protector is likely to be embroiled in a dispute.  That is what happened to a trust protector in a recent case in Arizona.  

Austin Bates suffered from Parkinson’s disease and was in the process of getting a divorce when he hired an attorney to create a trust for him. The trust provided distributions to his ex-wife, daughters, and his caretaker. Mr. Bates selected a professional trustee and designated his attorney as trust protector. The trust protector could, according to the terms of the trust, alter or amend the trust consistent with Mr. Bates’s wishes. Once his divorce was final, Mr. Bates married his caretaker, Lindi Bates. After meeting with Mr. Bates and his new wife, the trust protector amended the trust adding a "no contest" clause (legally referred to as an in terrorem clause), which invalidated the interests of anyone who contested the trust, and eliminating the distribution to Mr. Bates’s ex-wife, providing instead income to his new wife for her life and making Mr. Bates’s daughters the remainder beneficiaries after the death of the new wife.

Mr. Bates’s daughters sued to invalidate the trust amendment on the grounds that the amendment was procured through undue influence. The new wife moved to dismiss the undue influence claim, arguing that the daughters alleged she influenced Mr. Bates, but that Mr. Bates had no ability to amend the trust. The court dismissed the undue influence claim and enforced the in terrorem clause, disinheriting the daughters as beneficiaries. The daughters appealed.

The Arizona Court of Appeals reversed, holding that the the lower court improperly dismissed the undue influence claim because the new wife could be found to have exercised undue influence over Mr. Bates, and  although Mr. Bates didn’t have authority to amend the trust, the trust protector was duty bound to follow Mr. Bates’s wishes.  Bates v. Bates, (Az. Ct. App., Div. 1, No. CA-CV 19-0845, May 11, 2021). According to the court, state law “does not require a claimant to allege the defendant exerted undue influence directly over the person with final authority to amend the trust; instead, it broadly states that a trust amendment is void if ‘its creation was induced’ by undue influence.”  Bates, at pp. 7-8.

The Bates case is instructive regarding how the court treated the undue influence claim. More, though, the case is instructive regarding the court's treatment of the trust protector given that protector's involvement as, essentially, an agent of the settlor in the case.  It is possible that better design and drafting might have avoided the claim, but there is little question that the broad grant of authority conferred to the protector, and the exercise of that authority, caused the protector to become embroiled in an all-too-common family squabble. 

Note: Photo 140723192 / Protection © Andrii Yalanskyi | Dreamstime.com

Five Trends Driving Potential of Wearables for Older Adults

Laurie Orlov has identified five trends driving the potential of wearable technology for older adults.  Orlov is a tech industry veteran, writer, speaker, elder care advocate, and founder of Aging and Health Technology Watch (an excellent blog to which every reader should subscribe). 

Wearable technology is nothing new, perhaps, but application to and use by the older community has always been a question.  From activity trackers that gained popularity in the past decade, to introduction of smart watches by Apple in 2015, the adoption of wearables by older adults has continued to grow. New products, like the Oura Ring, the Apple Watch Series 6 and the Samsung Galaxy Watch 3 Active, or the Bose SoundControl hearing aid, continue to fuel interest in their potential for older adults.

The five trends she identified are:  

• Forecasts of purchases are rising. The analyst firm Gartner has predicted, in its January 2021 forecast, that worldwide end-user spending on wearable devices will reach $81.5 billion this year, representing an 18.1% increase over 2020, when spending reached $69 billion. The growth is being attributed to increased remote working and a higher interest in health monitoring.  According to Orlov, IDC forecast growth in hearables (397 million units) and smart watch shipments (156 million units) out to 2024, and an Apple Watch insider told her that 3-5 million Apple watches alone have been purchased by adults age 65+.

• Health-tracking devices and usage grew in 2020. According to Rock Health, 66% of those who started using a wearable did so to manage a diagnosed health condition.  And more than 51% of wearables owners use the device to manage a diagnosed health condition.  Specific health attributes included weight, heart rate, blood pressure. It should be noted data was collected prior to the 2020 Covid-19 lockdowns.

• Views on the patient's role in their medical are changing.  In 2013, Leroy Hood published a paper, “Systems Biology and P4 Medicine: Past, Present, and Future” that introduced the idea that patients had a role in their own care, saying that medicine should be ‘predictive, preventive, personalized, and participatory.” That concept became a basis for the growing interest in the role of wearables as capable of assisting in all four attributes.  The public is taking a greater role, in part due to availability of devices that make them active participants, and in part as they discern their own specific goal and objectives regarding health care.

• Consumers show preferences about what to track.  Even before the Covid-19 pandemic, as of January, 2020, the Guidance for Wearable Health Solutions white paper noted that users of wearables were showing preferences about what to track, expressing, for example, interest in tracking blood pressure and heart health. 

• Growing consumer interest in actually utilizing wearable health solution information. Because individuals want to participate in their own health, they not only want to track, but also to share data with their doctor to help with a more accurate diagnosis. The Consumer Technology Association has been surveying consumers – and noted that even in February of 2019, 58% of consumers were willing to share health data with their doctor to gain a more accurate diagnosis and treatment.

Technology can be a game-changer for an older person's ability to age in place,  whether at home, in a community, with friends or family, or even in an institution.  Technology is persistent, does not become weary or burdened emotionally, physically, or mentally, and particularly where incorporated with robust human contact, interaction, oversight, and review, can empower choices that  simply are not otherwise possible.