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

ID 179769815 © Artur Szczybylo | Dreamstime.com

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

ID 59996578 © Oleg Dudko | Dreamstime.com

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.

FTC Warns LTC Institutions: Stimulus Checks Are Not Available Resources So Keep Your Hands Off!

Last week, this blog addressed issues arising from stimulus checks issued to the recently deceased. This week, stimulus checks are again a topic, as some nursing homes and assisted living facilities are requesting or requiring their residents to pay the proceeds to the facility. 

The request or requirement is not lawful.  Accordingly, the Federal Trade Commission cautioned operators of "nursing homes and assisted living residences" that they cannot lawfully require residents on Medicaid to "sign over" their pandemic-inspired stimulus checks to pay down their care bills. These long-term care institutions might misunderstand the Medicaid rules, assume they are like other monies or assets, deem them available resources and require or request that the payment be made to the institution.  That's a mistake, and the law does not consider the payments "available resources:"

According to the CARES Act, those economic impact payments are considered tax credits and tax credits don’t count as “resources” for federal benefits programs like Medicaid. That means that nursing homes and assisted living facilities can’t take that money from residents simply because the resident is on Medicaid. Need some quick cites? Take a look at page 3 of the Congressional Research Services’ COVID-19 and Direct Payments to Individuals: Summary of the 2020 Recovery Rebates/Economic Impact Payments in the CARES Act and 26 U.S.C. § 6409 of the Internal Revenue Code.

Plus the FTC notes this "isn’t just an arcane hypothetical someone has dreamed up. The Iowa Attorney General’s Office and other State AGs have received boots-on the-ground reports this is happening."

Family members of Medicaid-program LTC clients should also be on the lookout.  FTC advises anyone with concerns about inappropriate actions on stimulus checks to contact their state attorney general's office and report the concern to the FTC.  In addition, contact counsel, so counsel can demand prompt repayment.  

States Grant Nursing Homes Legal Protections in Wake of Covid-19

At least 15 states have granted some lawsuit protection to nursing homes and long-term care facilities as a result of laws or governors’ orders. The move comes as Covid-19 deaths in nursing homes and long-term care facilities have reached more than 20,000, according to the Associated Press.  Unclear is whether the AP is reporting actual reported deaths, or estimated deaths, since many claim that nursing home deaths are under-reported.

Protections vary, but they usually protect nursing homes from simple negligence for injuries, deaths and care decisions during the pandemic. Suits are generally allowed for gross negligence, actual malice and willful misconduct.

States that have enacted lawsuit protection include Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont and Wisconsin.

Some states have enacted laws and executive orders that immunize health care providers but don’t specifically mention nursing homes. Protection for health care providers will likely also protect nursing homes.

The new law in New York immunizes hospitals and nursing homes from claims of ordinary negligence for providing care during the COVID-19 crisis.  The facilities are also immune from criminal liability.  Immunity does not apply to willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.  The law specifically says any actions taken as a result of staffing shortages or supply shortages are entitled to protection.

Critics say nursing homes should be held accountable for deficiencies, such as staffing shortages and poor infection control, that were a problem even before the pandemic.  Among the critics is Richard Mollot, executive director of the Long Term Care Community Coalition, which advocates for nursing home residents, NPR reports.

“Providing blanket immunity to nursing homes for any kind of substandard care, abuse or neglect is an extremely poor and dangerous idea anytime, and particularly so in regard to COVID-19,” Mollot told NPR.

Stimulus Checks for the Deceased

Several clients have called our office inquiring what to do with stimulus checks for their deceased loved ones. Many of these checks were delivered even thought the IRS knew the person was deceased.  Indeed they often have designated "DEC'D," after their name.

I wish I had a clear answer, but the answer is that no one knows.  So consider the following:

• Spousal Checks with a Surviving Spouse: Deposit. I am recommending that the spouse deposits the check.  
• Spousal Checks with Neither Surviving: It Depends. (I haven't been asked about this and don't even know that such a creature exists). Is the check already deposited?  Follow the guidance below depending on whether it is or isn't already deposited.   
• You Already Deposited the Check: Plan ahead. I am advising clients that have already deposited the money that they should expect to some day be required to pay it back, but that is based only upon a single statement by the Secretary of the Treasury.  
• You Haven't Deposited the Check: Safekeeping. If they haven't deposited the checks, I have suggested that clients keep it in a safe place so that it might later be returned.  I am not advising destruction of the checks, as apparently some have.  Why?  If there is fraud or misapplication of the funds, without proof that they did not negotiate the check, they may later be responsible for it. Of course, some would ask, isn't the safest place for the money a bank?  Understand that I don't feel I can suggest that you deposit the check if you haven't already.

To understand the complexity, consider the following, a reprint of an article entitled, "Heirs may have to return stimulus money sent to the deceased, but how and when?"

A lot of people who received stimulus payments for their dead parents or spouses are more confused than ever.

 There's new word that they have to return the money. But so far, there's been no official guidance on how to go about it. 

U.S. Treasury Secretary Steve Mnuchin who is quoted in the Wall Street Journal as saying heirs should be returning money that was sent in the name of someone who died. But so far, no one will elaborate.

"I couldn't find any guidance anywhere on what I was supposed to do with this check," said Debbie Carter of Olympia. She recently received a $1,200 stimulus check in the mail for her 79-year-old mother Ann Tate who died nearly a year ago. The check even has the abbreviation 'DECD', for deceased next to Ann Tate's name.Payments to the deceased have been a concern since the stimulus checks started going out. The government is not saying how many dead people received money but consumers are reporting them from across the country.

"I understand that they were trying to be helpful and wanted to get the money out the people as soon as they can to help them," Carter said. "But I think they made more of a mess out of it. We're not the only people, from what I've seen on the internet that have received these checks. And for the Treasury Department to have to go back through and find out who they sent these checks out to and try and get them back- I can't even believe what kind of a mess that's gonna be." 

Despite published reports that the government wants heirs to return economic impact payments sent to the deceased, as of late Wednesday there was no official comment and no information addressing the issue on either the U.S. Treasury or IRS websites.

Carter said her mother, who was an accountant, would consider it a waste.

"I can hear her in my head going, 'I can't believe they did this,'" Carter said.

Carter said she feels for people who really need the money and may have already spent it. She said she and her brothers understand the money is not theirs so they will not cash it. 

"Honestly, I was thinking about holding on to it and keeping it as a historical artifact," Carter said. "Because it's void after one year, so, I'm not taking the money out." 

 People are getting conflicting information from tax professionals about their rights to the money.  

Some people say they were told that if the person was living Jan. 2 their survivors could keep the cash. But in a transcript of a April 17 White House briefing President Trump was asked about checks to dead people. He said, "we'll get that back." 

Bottom line: If you still have stimulus money sent to someone who died, hang on to it if you can, and keep checking the IRS and Treasury websites for guidance on what to do. 

KOMO News reached out this morning to both agencies but neither has replied as of this publication. We'll let you know as soon as we hear anything.

Court Reverses Agency Decision Ignoring Appraised Value of Home for Purpose of Medicaid Penalty

A New Jersey appeals court reversed a final Medicaid agency decision that ignored an appraiser’s testimony that the actual value of an applicant’s house was less than the tax assessed value for purposes of imposing a penalty period. J.B. v. Camden County Board of Social Services (N.J. Super. Ct., App. Div., No. A-5665-17T4, May 5, 2020).

J.B. entered a nursing home. In preparation for applying for Medicaid, her son, acting under a power of attorney, sold her home for $17,500 to an acquaintance who was a realtor. The tax assessed value of the home was $104,700. J.B. applied for Medicaid, and the state imposed a 236-day penalty period because she sold her house for less than the market value.

J.B. appealed, arguing that the house was in poor condition, so $17,500 was fair market value. At a hearing, an appraiser testified that the market value of the house after it was sold and improvements had been made was $78,000, noting the appraisal would have been lower had it taken place either before improvements were made or had she known "the property was a hoarding situation and required a significant amount of repairs." Because there was no evidence of the condition of the house before it was sold, the administrative law judge accepted the appraised value of $78,000 and imposed a 142-day penalty period. In the final agency decision, the director of the state Medicaid agency did not discuss the appraised value and imposed a 329-day penalty period. J.B. appealed.

The New Jersey Superior Court, Appellate Division, reversed in part and remanded the case. The court agreed that the transfer was made for less than market value in order to qualify for Medicaid. The court ruled that the “appraiser's opinion that the fair market value of [J.B.’s] home at the time of the appraisal was $78,000 is well-supported by the evidence on the record as a whole” and the failure of the final agency decision to mention the appraisal “appears to be arbitrary and unreasonable.” The court remanded the case to the director to address this issue.

States Cannot Terminate Medicaid Benefits During Covid Crisis

A provision in one of the coronavirus relief packages signed into law prevents states from terminating Medicaid benefits during the pandemic.

The Families First Coronavirus Response Act (“CV Response Act”), signed into law on March 18, 2020, prevents states from terminating any Medicaid recipients who were enrolled in Medicaid on or after March 18, 2020 even if there is a change in circumstances that would normally lead to termination. All Medicaid recipients’ coverage must continue through the end of the month in which the public health emergency declared by the Secretary of Health and Human Services for COVID-19 ends.

If the state terminated a Medicaid recipient’s benefits after March 18, 2020, the state must make a good faith effort to contact the recipient and encourage him or her to reenroll. States may terminate coverage for individuals who request to be terminated or who are no longer residents of the state.

The continuous coverage requirement does not apply to individuals who were determined to be presumptively eligible for benefits. However, individuals who were determined ineligible before March 18, 2020, but who continue to receive coverage while they appeal the decision are entitled to continuous coverage.

For a description of all of the other benefits and terms of the Act, click here. 

For a list of Frequently Asked Questions (FAQ) about the Medicaid requirements under the law, click here.

Company’s Ability to Change Terms of Irrevocable Annuity Does Not Make It Available Resource

Medicaid applicant’s irrevocable annuity is not an available resource even though the company issuing the annuity has the authority to change its terms. Cushing v. Jacobs (U.S. Dist. Ct., D.N.J., No. 20-CV-130, March 25, 2020). 

Jane Cushing purchased an irrevocable annuity from the Croatian Fraternal Union of America (Croatian). The annuity had a provision that the president or treasurer of Croatian could change or waive the contract’s requirements. Ms. Cushing applied for Medicaid. The state decided that because the president or treasurer of Croatian could change its terms, the annuity was revocable. The state denied Ms. Cushing benefits due to excess assets. 

Ms. Cushing sued the state in federal court, arguing that the annuity is not an available resource, and filed a motion for summary judgment. The state argued that in a previous case (MM v. Division of Medical Assistance and Health Services, OAL Docket No. HMA 1057- 2019), a Medicaid applicant asked the president to change the terms of her annuity purchased through Croatian, so the state determined that the annuity was revocable and denied the applicant benefits. 

The U.S. District Court, District of New Jersey, granted Ms. Cushing summary judgment, holding that the annuity is not an available resource. According to the court, the annuity contract is “unambiguous on the issue of revocability,” and the prior case had no bearing on Ms. Cushing’s annuity. 

Little Noticed Provision in Trump Executive Order Allows Seniors to Opt Out of Medicare

Seniors are now permitted to opt out of Medicare.  A little-noticed section of a longer Executive Order on Medicare issued last November by President Trump directed the Secretary of Health and Human Services (HHS) to “revise current rules or policies to preserve the Social Security retirement insurance benefits of seniors who choose not to receive benefits under Medicare Part A.” (E.O. 13890, Sec. 11). The order took effect on April 3, 2020, but there appear to be no new proposed rules. 

You may wonder, "why?"  During President Obama’s administration, three retired federal employees – among them former Republican House Majority Leader Dick Armey -- sued the federal government because they wanted to drop their Medicare Part A coverage without losing Social Security benefits. They claimed participation in Medicare threatened their coverage under the Federal Employees Health Benefit (FEHB) program.

A U.S. district court judge dismissed the case in March 2011, a decision that was upheld the following year by a three-judge panel of the U.S. Court of Appeals for the District of Columbia, with then-judge Brett Kavanaugh writing for the majority that the federal statute offers the plaintiffs no path to disclaim their legal entitlement to Medicare Part A benefits.  The U.S. Supreme Court declined to review the decision.   

Although there exist no implementing rules, presumably anyone can now drop Medicare coverage without it affecting their Social Security retirement benefit.   John Kraus, one of the plaintiffs in the original suit, explained to ElderLawAnswers that “[t]here isn't any law, statute, or regulation that memorializes in the U.S. Code this linkage of the two programs. It is only found in the Social Security Administration's (SSA) Program Operations Manual System (POMS).”

When asked why he and his fellow plaintiffs wanted to separate from Medicare, Kraus explained that  the reasons

“are several.  The foremost is that one enrolled in Medicare cannot have a High Deductible Health Plan with a Health Savings Account. Secondly, for FEHB participants, their coverage becomes secondary to Medicare, without a premium reduction for FEHB coverage. Third, there is the issue of Medicare solvency, which could be a serious consideration in the near future. Lastly, there is the consideration of reduced choice and availability of health care providers because they are either leaving the Medicare program or not accepting additional Medicare recipients as new patients.”

Judith Stein, executive director of the Center for Medicare Advocacy, contends that allowing people to drop Medicare Part A would only weaken the program.  “We do not support allowing people to opt out of Part A,” Stein told ElderLawAnswers.  “[It’s] not good for Medicare in general, and not allowed by courts – to date.”