Son's Filial Responsibility Nursing Home Debt Dischargeable in Bankruptcy; Not Required to Spend All of Mother’s Assets on Her Care

As previously discussed in this blog, nursing homes have devised various schemes to ensure collection of costs from family members of residents, notwithstanding a federal law making it unlawful to hold families contractually responsible as a condition of admission [the hyperlink will take you to all of the filial responsibility blog articles].  

A recent iteration of this effort includes contesting bankruptcy discharge of the debt.  One effort has, nonetheless, proved futile. A U.S. Bankruptcy Court has ruled that the judgment debt of a resident's son to a nursing home for his mother’s care is dischargeable in bankruptcy.  The Court found that the son’s failure to apply all of his mother’s income and assets towards her care did not constitute an attempt to defraud the facility. Geriatric Facilities of Cape Cod, Inc. v. Georges (Bankr. D. Mass., No. 19-01096-MSH), June 22, 2021).

In April 2010, acting as an agent under a power of attorney, Jonathon D. Georges signed a services agreement with Pleasant Bay, a Massachusetts nursing home to provide care to his mother, C. Doris Georges. The contract identified Mr. Georges as a “responsible party” and obligated him to apply his mother’s funds and assets to pay for the services being rendered to her. 

At the time the contract was signed, the nursing home’s monthly cost typically exceeded $8,000, while Ms. Georges’ monthly income was limited to $2,410.24, consisting of Social Security and payments from an annuity.

In March 2012, Mr. Georges sold his mother’s condominium to pay her obligations to Pleasant Bay, netting $247,395.03.  Mr. Georges paid $104,128.91 to the nursing home to bring his mother’s account current and spent another $63,500 on gifts to various family members, including himself.  By the fall of 2011, with the sale proceeds having been nearly all spent, Mr. Georges applied to Medicaid (MassHealth) for long-term care benefits for his mother.  At the same time, he stopped paying Pleasant Bay with his mother’s income, believing that once Medicaid was approved the balance would be resolved.  

Ultimately, the Medicaid application was denied due to the substantial gifts to family members.  Unable to reach an agreement with Pleasant Bay to settle the balance, Mr. Georges used his mother’s income that he had been setting aside to move her to another facility.  In October 2012, Pleasant Bay sued Mr. Georges in state court for the services rendered.  The case settled prior to any hearings when Mr. Georges agreed to a judgment being entered against him in the amount of $128,000, plus interest.  Ms. Georges died in 2013.

In May 2019, Mr. Georges filed a voluntary petition for relief under Chapter 7 of the bankruptcy code and included the judgment debt to Pleasant Bay in the bankruptcy schedule.  Pleasant Bay objected to the discharge of its debt, arguing that the debt was excepted from discharge because Mr. Georges had obtained the debt by false pretenses or false representations when he promised to devote all of his mother’s assets and income to pay for her care when he had no intention of doing so.  Mr. Georges countered that he had not understood or agreed that all of his mother’s income and assets had to be used to pay Pleasant Bay for her care and that he made gifts to himself and family members in accordance with his understanding of her wishes.

The U.S. Bankruptcy Court for the District of Massachusetts found that “no reasonable reading of the services agreement supports Pleasant Bay’s interpretation that Ms. Georges and Mr. Georges were contractually bound to devote every cent of Ms. George’s income and assets to pay Pleasant Bay.”  The court found that “[h]ad Pleasant Bay wanted to bind its residents to devoting the entirety of their income and assets to the payment of nursing home expenses, to the exclusion of everything else, it needed far more detailed and explicit contractual terms.”

Nearly On-Half of Assisted Living Facilities Operating at Loss; Only One-Fourth Confident They Can Last Another Year or More

Assisted living providers continue to face a serious economic crisis in the wake of the pandemic, according to the results of a new survey. A separate survey finds that Americans agree that more needs to be done to support older adults in the United States.

In a National Center for Assisted Living survey of 122 assisted living communities, 49% said they are operating at a loss, and the same percentage said they have made cuts this year due to increased expenses and lost revenue.

Seventy-four percent of assisted living respondents said they are losing revenue due to fewer people seeking long-term care, 44% said they are losing revenue due to move-outs and 37% said they are losing revenue because of fewer admissions from hospitals.

“Even though COVID cases in long-term care are at historic lows, providers are struggling to recover from the economic crisis the pandemic has induced,” Mark Parkinson, president and CEO of NCAL and sister organization the American Health Care Association. “Too many facilities are operating under shoestring budgets simply because policymakers have failed to dedicate the proper resources and this can have devastating consequences.”

Assisted living providers still are incurring COVID-19 costs from higher wages (73%), additional staffing (48%) and personal protective equipment (47%) despite the availability of vaccines, according to respondents. The association previously laid out proposals in its Care for Our Seniors Act to enable providers to address staffing shortages.

Lawmakers and public officials must prioritize residents and caregivers by sending immediate resources through what remains of the federal Provider Relief Fund, Parkinson said. 

AHCA also surveyed 616 nursing homes. Together, only one-fourth of assisted living communities and nursing homes said they are confident they can last a year or more. See more nursing home results on the McKnight’s Long-Term Care News website and more about all survey results in the McKnight’s Business Daily.

Source: K. Bonvissuto, "49 percent of assisted living providers operating at a loss: survey," McKnight's Senior Living (June 30,2021).

Isolation Impact: Death Rate Higher for Institutionalized Residents in Socially Isolated Neighborhoods

Nursing home residents in socially isolated neighborhoods are at an increased risk of mortality according to findings from a new study published in JAMA.

A recent analysis conducted by a Boston-based research team found that long-term care residents in facilities located in areas with high levels of social isolation have higher mortality rates than residents in facilities in places that have more social contact. Findings showed residents entering facilities in neighborhoods with the highest levels of social isolation among older adults had a 17% higher risk of mortality compared with those in neighborhoods with the lowest levels. 

Social isolation among seniors has been an ongoing topic among the long-term care industry due to the COVID-19 pandemic and it’s connection with depression, anxiety and cognitive decline among nursing home residents.  Isolation impact is not well known or studied, though it is addressed elsewhere in this blog (here and here, the latter being a collection of articles tagged with the topic "isolation" meaning that the subject was mentioned).   

Researchers said the findings suggest the need for operators to place special attention and strategies to keep long-term care residents connected to their friends and family for optimal health: 

“Such measures could eventually contribute to improved health trajectories in the US population that is increasingly aging and at growing risk of entering LTC facilities.”

For those interested and/or committed to aging in place, the findings provide additional justification for avoiding institutionalization, to be sure sure, but they also underscore the importance of planning and implementing a rigorous social plan, including and incorporating family, friends, and fraternal organizations and associations.  For secular and non-secular organizations serving the needs of seniors, the findings of the study underscore the importance of outreach and involvement, for example, by ensuring transportation for seniors otherwise unable to travel. 

COVID-19 Still Killing 800 a Month in Nursing Homes

Nursing home deaths from COVID-19 remain sharply down from their winter peaks, but the declines have now plateaued and more than 800 residents and staff members each month continue to die from the virus, according to an exclusive new analysis of federal data by AARP.  The analysis did not comment upon and likely did not factor recent data suggesting that seniors in nursing homes may have lower immune response from the vaccines. 

There was little change in the national rates of COVID-19 infections and deaths in nursing homes from mid-March to mid-May, the analysis shows, even as rates in the wider community continued dropping. More than 10,000 residents and staff members are becoming newly infected each month.

Experts say that limited vaccine uptake among long-term care workers, worker shortages and the recent relaxation of nursing home restrictions might be causing the plateau, although more data and analysis are required.

Since the pandemic hit, COVID-19 has killed more than 184,000 residents and staff of long-term care, which includes nursing homes, assisted living facilities and other residential settings. Those deaths constitute almost a third of America's entire COVID-19 death toll, according to the Kaiser Family Foundation.

In nursing homes, the infection and death rates peaked last winter, when close to 20,000 residents and staff were reported dead from COVID-19 in just four weeks from mid-December to mid-January; 1 in every 51 residents died from the virus.

Then, cases and deaths started to plummet, dropping more than 90 percent by mid-March, with the arrival of vaccines, tougher restrictions from governments, and high levels of natural immunity from months of high infection rates. Though the situation has improved, nursing home advocates say current COVID-19 rates in nursing homes shouldn't be accepted as the new normal.

The federal government asked the country's 15,000-plus nursing homes to loosen visitation restrictions in March. Citing widespread vaccinations of residents, drops in COVID-19 infections among residents and staff, and the tolls of separation and isolation on residents and their families, the federal Centers for Medicare & Medicaid Services (CMS) said facilities should allow indoor visits “regardless of vaccination status of the resident or the visitor."

The resulting uptick in visitors could, in part, be contributing to the halt in COVID-19 declines, according to Jennifer Schrack, an associate professor in the epidemiology of aging at the Johns Hopkins Bloomberg School of Public Health in Baltimore.

"Every visitor is another potential exposure, particularly those who are not vaccinated,” she says. “They have to really consider carefully if they're going to visit their loved one, and if they do, they should wear [personal protective equipment] and be very cautious, even if their loved one is vaccinated. … Low risk doesn't mean no risk.”

Unvaccinated staff, which could represent nearly half of the nursing home and assisting living workforce, may be an even bigger factor.

Source: Emily Paulin, AARP, June 10, 2021 COVID-19 Still Killing 800 a Month in Nursing Homes, AARP Analysis Shows, 

Nursing Home Mortality Rate Soared 32 Percent in 2020

The coronavirus pandemic’s “devastating impact” on nursing homes led to a 32% spike in overall mortality rate among Medicare residents during 2020, according to a new report by the Office of Inspector General. The spike means there were 169,291 more deaths in 2020 than would be expected if the mortality rate had remained the same as in 2019. There were 3.1 million Medicare beneficiaries who resided in nursing homes in 2020. 

Each month of 2020 had a higher mortality rate than the corresponding month a year earlier. In April 2020 alone, a total of 81,484 Medicare beneficiaries in nursing homes died — more than twice the number in April 2019.

Federal investigators added that the data shows the pandemic had “far-reaching implications for all nursing home beneficiaries, beyond those who had or likely had COVID-19.” This blog has previously addressed the higher rate of medical mistakes and errors and neglect that occurred amidst the pandemic as well as the horrific impacts from isolation, loneliness, and lack of psychological care and treatment.

The findings also revealed that more than forty percent of Medicare beneficiaries (1.3 million beneficiaries), in nursing homes had or likely had COVID-19 in 2020. The number of infected beneficiaries swelled dramatically during the spring of 2020, with just over 21,000 diagnosed as having or likely having the disease between January and March. By the end of June, the number was close to 419,000. 

Federal researchers also found about half of Black, Hispanic and Asian beneficiaries in nursing homes had or likely had COVID-19 in 2020. Each group was more likely than their white counterparts to contract the disease. 

Harvard health policy expert David Grabowski, Ph.D., said those who work in the field “knew this was going to be bad” but didn’t think “it was going to be this bad.” “This was not individuals who were going to die anyway,” Grabowski told the Associated Press. “We are talking about a really big number of excess deaths.”

“The COVID-19 pandemic has been devastating for Medicare beneficiaries in nursing homes,” the government watchdog agency wrote. “The toll that the COVID pandemic has taken on Medicare beneficiaries in nursing homes demonstrates the need for increased action to mitigate the effects of the ongoing pandemic and to avert such tragedies from occurring in the future.”  

The report is the first in a three-part series focusing on the impact of COVID-19 in nursing homes. Upcoming analyses are expected to focus on strategies nursing homes have used to combat the pandemic. 

Source: D. Brown, "Nursing home death rate soared 32 percent in 2020," McKnight's Longterm Care News (June 23, 2021).

Nursing Home Residents May Have Lower Vaccine Immune Response

A COVID-19 vaccine administered to nursing home residents in northeast Ohio was less effective in creating an antibody response in them than in a control group of health care workers, according to a Case Western Reserve-led study.

Some residents responded "reasonably well," but a portion responded "poorly to very poorly," concluded university researchers. What's not yet clear is why, or what the threshold for protection is when measured in terms of antibodies.

"We urgently need better longitudinal evidence on vaccine effectiveness" to inform best practices for nursing home infection control measures, outbreak prevention and potential indication for a vaccine boost, stated the study. Its co-principal investigators include David Canaday, MD, a professor in the School of Medicine’s Division of Infectious Disease, and Mark Cameron, PhD, an associate professor in the school’s Department of Population and Quantitative Health Sciences.

Once COVID-19 reached the United States, nursing homes became hotspots, with a rapid rise of infections and deaths; when vaccines became available, nursing home residents were among the first to receive them.  The study focused on the antibody immune response in residents by comparing a blood sample taken before the first vaccination, with another taken about two weeks after the second one.  It included 149 residents and a younger control group of 110 health care workers. All participants received the Pfizer vaccine.

Researchers examined three measures of antibodies; in all cases, residents had lower levels. For example, residents had a quarter of the anti-virus antibodies as the control group.

Canaday said the study's results can’t be compared to Pfizer’s vaccine efficacy rate of 95% because the Pfizer clinical trial focused on the number of adults of any age who got COVID-19, not the quantity of antibodies in the blood.

"The vaccine does make an immune response in almost every nursing home resident, although the magnitude is lower than in the younger age," Canaday said.

The study was the first outcome from a $2.3 million National Institutes of Health grant focused on COVID-19's spread in nursing homes awarded to Canaday, Cameron and fellow co-principal investigator Stefan Gravenstein, MD, a geriatrician and professor at Brown University.

They are now exploring varying responses to COVID-19 in nursing home residents and what level of antibodies is protective.

"There are so many questions to be answered surrounding the role of one's immune system in determining whether an infected individual has a mild, moderate or very severe form of COVID-19," Cameron said, "especially in people who are older or have underlying health issues that put them more at risk for poor outcomes."

Recurring Scam Withdrawals Result in Medicaid Application Denial

A New Jersey appeals court has ruled that the Medicaid agency properly denied an application on the basis of the applicant failing to "verify" recurring transactions on the applicant’s bank statement even though the transactions may have been part of a scam.  G.M. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-0433-19, June 16, 2021).

G.M. suffered from dementia and lived in a nursing home. In 2018, she applied for Medicaid benefits and submitted the required bank statements. The Medicaid agency requested verification of recurring transactions from 2013 in the amount of $300 that were labelled:

"ACH DEPOSIT UNITEDCAPITALCRE UNITED CAP" (UCC)." 

G.M.’s authorized representative stated that her family believed the transactions were part of a scam of which G.M. was a victim.  The representative provided supporting "screenshots" to show that the company UCC was no longer in business.  As a result of the foregoing, the representative declared that she could not provide formal documentation.

The Medicaid agency denied G.M.’s application for failing to provide sufficient verifications. G.M. appealed, but the administrative law judge affirmed the denial, stating that there was a lack of evidence that G.M.’s agent under her power of attorney attempted to determine the nature of the transactions. The Medicaid agency affirmed the denial, and G.M. appealed to court.

The New Jersey Superior Court, Appellate Division, affirmed, holding that the Medicaid agency properly denied G.M.’s Medicaid application for failure to provide verifications. According to the court, the screenshots of UCC’s former website did not provide evidence of the purpose of the transactions, so G.M.’s “proof of eligibility was inconclusive."  The "decision to deny [G.M.’s] application was not arbitrary, capricious, or unreasonable.”

The decision does not address what, in addition to the representative's declaration, would suffice. 

Coordinating Business and Estate Planning Documents: The Not-so-happy Lesson from TV Painter Bob Ross

Celebrity estates often serve as object lessons of how, and how not to, design estate and business plans.  The estate of Bing Crosby is widely hailed as instructive in the use of trusts to avoid probate and protect privacy.  Unfortunately, the estate of TV painter Bob Ross, serves as a cautionary tale regarding the failure to coordinate estate and business planning documents.  

Bob Ross rose to fame in the 1980s as the host and instructor of the wildly popular Joy of Painting TV show. Viewers were drawn to his artistic techniques, mesmerizing voice, and congenial manner. The result of his death was less than congenial as  nasty legal war erupted between his business partners and family. 

Bob Ross Inc. was formed by Ross, his wife Jane, and their friends Walter and Annette Kowalski. Although the four were equal partners, Ross was its widely recognized public face. From 1986 through 1994 the company registered several trademarks using Bob Ross’ name and likeness, with Bob’s written consent, and also signed several licensing agreements with third parties, also with Ross’ consent.

In 1992, Bob’s wife Jane passed away. The business structure required that any shares of a deceased partner were to be distributed equally among the surviving partners. And that is how Ross, despite being the public face of the Bob Ross juggernaut, found himself with only a one-third interest in the company.

Shortly after Jane passed, Ross developed lymphoma. The prognosis was sadly grim. In 1994, while battling the disease that would take his life one year later, the Kowalskis approached Ross. They presented him with a contract giving the Kowalskis all commercial rights to Ross’ name, image, voice, biographical material, and creative works. In return, the Kowalskis would pay Ross or his surviving heirs ten percent (10%) of Bob Ross Inc, profits,  but only for the next ten years.  After ten years the Kowalskis, and not the Ross family, would own and receive all income from Bob Ross, Inc. 

Ross was reportedly infuriated and refused to sign the agreement. Instead, he modified his estate plan in an attempt to keep intellectual rights to everything Bob Ross in his own family. He created the Bob Ross Trust in 1994, assigning 51% of the interest in all intellectual property to his brother, Jimmie Cox, and 49% to his son, Steve Ross.

Ross died July 4, 1995 at age 52, leaving an estate valued at $1.3 million, half of which was his interest in Bob Ross Inc. The Kowalskis, unsuccessful at gaining control of the business while Ross was alive,  sued the estate. In addition to asking for all intellectual rights, the Kowalskis wanted all of Ross’ finished paintings and tools.

Unable to finance a prolonged legal battle, Cox, the estate executor, settled with the Kowalskis. The Estate and the Trust also signed separate Mutual Releases with Bob Ross Inc. stating that the parties and their heirs, assigns, successors in interest, etc., “do, now and forever, absolutely and irrevocably, hereby release each other in and from any and all claims, suits, liabilities, complaints, losses, damages, and charges of every kind and character arising prior to the date of execution hereof.”

Two decades after the lawsuit settled, Steve Ross, the son, realized there was a clause in his father’s trust that bequeathed to him all rights to his father’s name, likeness, and publicity. By then, Bob Ross had become an even bigger and more lucrative business, with the sale of Bob Ross bobbleheads, chia pets, mugs, and even action figures. The streaming services Twitch and Netflix had since picked up The Joy of Painting shows. Calm, the meditation app, even offered a Bob Ross sleep app.  The Kowalskis had deftly managed and grown the Bob Ross business enterprise.

Armed with this newfound knowledge about his father’s trust, Steve sued Bob Ross Inc. He alleged that all the Bob Ross Inc. business deals and products that used his father’s likeness were unauthorized. He demanded compensation. Unfortunately for Steve, the federal judge didn’t agree. The court ruled that Ross’ trust could not have given away the rights to Steve, because the trust did not own those rights to begin with. The ruling stated: “Plaintiff would not own the intellectual property at issue because the Trust never owned it. Similarly, because Bob Ross gave BRI his right to publicity during his lifetime, it could not have transferred to his son on his death.”

Bob Ross’ trust said Steve was to inherit the intellectual rights, but the trust was never funded with the rights, and could not, therefore, direct them.  The business agreement prevailed. Steve received nothing from the business empire built on his father’s likeness, reputation, or artistic techniques.

Source: "TV Painter Bob Ross’ Son Loses Lawsuit In Battle Between Father’s Trust And Business Agreement," (June 13, 2021) (last accessed 6/17/2021). 

Protecting Seniors From Alzheimer’s Cure Scams

The following is a reprint, for the reader's convenience, of an article published in  Today's Caregiver.  I thought it a timely topic since there is recent discussion of possible approval of a treatment for Alzheimer's disease, which will be addressed in a future blog post:  

Alzheimer’s disease is the health condition that many fear the most. That concern can prompt us to eat well, exercise, get regular health checkups and follow our doctors’ recommendations. However, for some older adults, the fear of the disease leads to wasting money on Alzheimer’s cure scams that at best do nothing and at worst may cause harm.

Alzheimer’s Cure Scams 

Alzheimer’s disease is the health condition that many fear the most. That concern can prompt us to eat well, exercise, get regular health checkups and follow our doctors’ recommendations. However, for some older adults, the fear of the disease leads to wasting money on Alzheimer’s cure scams that at best do nothing and at worst may cause harm.

Alzheimer's and dementia treatment scams are big business. Some manufacturers know that seniors fear Alzheimer’s and have money to spend. Seniors are also uniquely vulnerable to scams. As we age, our brains can change in ways that make us less aware when something important is happening nearby and reduce our ability to read social cues. Researchers say those brain changes can make us more vulnerable to scammers.

The good news is that the FDA is cracking down on companies that prey on people’s desperation for an Alzheimer’s cure. Earlier this year, the agency acted against makers of 58 products that claimed to treat the disease but didn’t have FDA approval or proof that they worked.

The bad news is there are still unproven products out there being sold to seniors and their family members who are desperate for some sense of hope. The FDA says in some cases, they can interact with prescription medications and harm the people who take them.

How to Protect Your Parents From Alzheimer’s Cure Scams

How can you tell if an Alzheimer’s treatment or dementia supplement is worthwhile? Here’s a checklist based on tips from the Alzheimer’s Association and the FDA.

• Does the product appear on the FDA’s Flickr account? The agency has a photo stream of products that have made unproven Alzheimer’s claims. The photos include close-ups of the products’ labels and packaging.
• Does the product claim to cure Alzheimer’s or dementia? Again, the FDA notes that there is no cure for Alzheimer’s.
• Does the product claim to reverse dementia symptoms? The FDA says there’s no product or FDA-approved treatment that can stop or reverse Alzheimer’s symptoms.
• Does the product say it can reduce the risk of Alzheimer’s by a specific amount? The FDA says there’s no proof to back up such claims.
• Some products are marketed with vague language that is misleading, scientists say. Look for these types of statements:
• Does the product claim to be a “scientific breakthrough?” That’s a general term that doesn’t necessarily mean anything.
• Does the product claim to help with lots of illnesses, not only Alzheimer’s? The FDA says you should “steer clear” of products that made broad, vague health claims.
• Does the product mention results in the lab or in animals? Those results don’t prove the treatment will help people.
• Does the product say it “may” help with Alzheimer’s disease or dementia? That means the product may or may not, and your parents may be better off saving their money.

Finally, remember that dietary supplements marketed to Alzheimer’s patients may seem legitimate because they’re available at the drugstore, but the evidence may not support dementia claims. Check the Alzheimer’s Association list of commonly recommended supplements like Omega-3 fatty acids and Ginkgo biloba to learn what they can and can’t do.

If you go through the checklist and you’re still not sure if a product is legitimate, ask their doctor. Your parent’s doctor knows which treatments and over-the-counter supplements may be helpful for your parent’s overall health. They also know which might interfere with their medications and which would be a waste of money.

Other Ways to Combat Alzheimer’s Scams

If you think your parent participated in any Alzheimer’s scams or if you suspect a product is a scam, you can report it to the FDA. Use the online form for reporting unlawful sales of medical products on the internet. You can also file a complaint with the attorney general in the state where your parents live. If your parents have taken a supplement that harmed them, you can report it to the Department of Health and Human Services. Of course, encourage your parent to talk about it with their doctor.

As with all issues concerning a senior for whom you are a caregiver, communication, and reinforcement of the message is important. My wife and I would find alternate ways of communicating a message, such as telling the senior a cautionary tale about another senior.  Being creative makes directed conversations more natural (less "preachy") and reinforces a message without emcouraging resistance.     

 

Home Health Care Worker Shortage Risks Lives- Impacts Aging in Place Planning

Aging in Place Planning should consider and account for all risks, including availability/unavailability of paid health care workers. The Michigan home health care worker shortage is discussed in an article here, and in a newscast video here.  

The reports suggest that Michigan home health care workers are paid only nine dollars per hour, and often call off.  Of course, there is a vast array of choices in health care agencies (public, private, for profit, and non-profit), and every agency deals with worker retention and availability differently.  

Our office is aware of only one private agency that will certify availability of an aide 24 hours a day; their workers agree that they cannot and will not leave until they are relieved, and the company assures availability by always having supervisory staff and periodic staff available to fill needs. 

Regardless, the challenge of caregiver availability is one that must be considered in making aging in place decisions.  Availability of temporary or respite services, workers, or sometimes, charitable hospice services, may provide relief when worker a home care worker shortage exists. Outside custodial care, respite care, or adult day care may relieve risk upon lack of availability, but transport and cost must be considered.