Nursing Home Critics Say COVID-19 Immunity Laws Are A Free Pass For Neglect

 As nursing home residents contend with both the effects of the COVID-19 pandemic, and the already dangerous nature of institutional care care resulting from abuse, neglect, and mistakes, critics and advocates are focusing attention on liability protections afforded these institutions.

As previously discussed, these protections are already being challenged in court cases.  For those who plan to age in place, the discussion presents just another in a litany of reasons to avoid institutional care.  With more than one-third of nursing home residents being injured or killed by mistakes in institutions before COVID-19, the case for aging in place planning could not be more clear. 

The following is a reprint of the NPR article entitled, Nursing Home Critics Say COVID-19 Immunity Laws Are A Free Pass For Neglect:

Palestine Howze died April 14, 2020, in a North Carolina nursing home.

She had developed a pressure ulcer — or bed sore as they're commonly known. It flared up in December 2018 and just grew worse, says her daughter Lisa Howze. Infection set in.

"We begged them to take her to the emergency room, but they assured us that they could handle it," Howze says.

Howze and her three sisters contend that the nursing home could not. In their experience, Treyburn Rehabilitation Center in Durham didn't seem to be able to handle much. On a scale of one to five stars, the federal government gives Treyburn just one. It also gets below-average ratings on the ratio of nurses to residents. The government has fined Treyburn almost $190,000 in the past three years.

Lisa Howze and her sisters have filed a lawsuit against Treyburn Rehabilitation Center. But it's unclear whether it can proceed.

Like nearly 30 other states, North Carolina granted legal immunity to nursing homes to shield them from COVID-19 lawsuits. Nursing homes argued that they needed protection as the coronavirus raged through their facilities and the recommended safety guidance from the Centers for Disease Control and Prevention fluctuated.

But that immunity raises questions for families like the Howzes, who contend that because their mother's death had nothing to do with the coronavirus, they should be able to legally hold Treyburn Rehabilitation Center accountable.

"Palestine Howze did not have to die in that way or at that time," says Elizabeth Todd, the family's attorney. Their lawsuit is believed to be the first of its kind to challenge nursing home immunity.

The Howze sisters hadn't had a lot of luck with nursing homes in general. Treyburn was the third one they'd tried. But it was close to where they lived, so the sisters could visit often to keep an eye on things. They needed to, says Lisa Howze.

"We were there a lot and we found ourselves having to bathe her, just general things they were supposed to do," Howze says. "We'd come in several times when she hadn't been fed her tray; [it was] just sitting there."

Then COVID-19 exploded across the country, taking an especially deadly toll in nursing homes — which have accounted for more than a third of all coronavirus-related deaths. Nursing homes closed their doors in March, locking families out as the industry tried to control the outbreaks. Everything got harder. And took longer.

Palestine Howze needed specialists in wound care and IV antibiotics. Lisa Howze had her mother's power of attorney. Again, she says she begged Treyburn Rehabilitation Center to send her mother to a hospital emergency room where they could find the specialists she needed. Again, she was turned down.

"Their excuses were, 'Well, you know, the emergency room at the hospital is not taking new patients because of COVID. And she would be safer here if she stayed here. And the facility is equipped to take care of your mother.'"

None of those things turned out to be true, Lisa Howze says.

In May, a month after Palestine Howze died, North Carolina passed a sweeping liability shield for long-term-care facilities, meaning that nursing homes — with rare exceptions — were immune from lawsuits. The measure was made retroactive to March 10, a few weeks before her mother's death.

Lisa Howze and her sisters decided to sue Treyburn anyway.

"For the legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous and it's unjust," says Todd, their attorney.

North Carolina's immunity law lasts until the pandemic is over. Todd is especially worried that the law gives a free pass to nursing homes with low staffing, like Treyburn.

"Literally, the nursing homes can take their own understaffing, their chronic understaffing, and use it as a shield to prevent any liability at all during the COVID pandemic," Todd says.

Through its attorneys, Treyburn Rehabilitation Center declined to comment.

But for many in the long-term-care industry, these immunity measures are a welcome relief, says Dave Voepel, CEO of the Arizona Health Care Association. Arizona Gov. Doug Ducey was among the first to sign an executive order granting nursing and assisted living facilities legal immunity.

ong-term-care facilities are facing a crisis of existential proportions, says Mark Reagan, the attorney for the California Association of Health Facilities.

That's because liability insurers are excluding all things COVID-19 when they renew policies.

That "would mean that any claims made regarding COVID infection, regardless of when that infection occurred in the past, would be subject to exclusion and no insurance coverage," says Reagan.

California does not have a liability shield, but the state has waivers, relaxing standards for personnel and bed space, for example. Congressional Republicans wanted a national immunity law but dropped it as part of the deal for the latest coronavirus relief package. Reagan still has hopes.

"What we are merely asking for is that caregivers and their employers don't get punished for doing the best that they could under the circumstances," he says.

But attorney Elizabeth Todd says Treyburn Rehabilitation Center wasn't doing the best it could for Palestine Howze. And she says that one of North Carolina's immunity criteria is that a facility must be acting in good faith, though that's not defined in the law.

"And so we argue the pretty shoddy state of Treyburn nursing home as COVID approached, and then as Mrs. Howze became very ill, that that was not providing health care in good faith," she says.

A Superior Court judge will decide whether to dismiss the case because of the immunity statute or allow it to continue, potentially giving Lisa Howze and her sisters their day in court.

"And for that we applaud him, because that just takes a little bit of pressure off," Voepel says, adding that it allows facilities to focus on what's most important. "We need to worry about keeping COVID out of the building."

Sometimes, he says, that cuts into the bottom line.

"Take, for instance, a 100-bed building and they really have 50 rooms, two beds per room," Voepel says. But to keep infection from spreading, those rooms may have to be converted to private rooms. So revenue is cut in half.

"It really takes its toll on the business side of the ledger," says Voepel.

Long-term-care facilities are facing a crisis of existential proportions, says Mark Reagan, the attorney for the California Association of Health Facilities.

That's because liability insurers are excluding all things COVID-19 when they renew policies.

That "would mean that any claims made regarding COVID infection, regardless of when that infection occurred in the past, would be subject to exclusion and no insurance coverage," says Reagan.

California does not have a liability shield, but the state has waivers, relaxing standards for personnel and bed space, for example. Congressional Republicans wanted a national immunity law but dropped it as part of the deal for the latest coronavirus relief package. Reagan still has hopes.

"What we are merely asking for is that caregivers and their employers don't get punished for doing the best that they could under the circumstances," he says.

But attorney Elizabeth Todd says Treyburn Rehabilitation Center wasn't doing the best it could for Palestine Howze. And she says that one of North Carolina's immunity criteria is that a facility must be acting in good faith, though that's not defined in the law.

"And so we argue the pretty shoddy state of Treyburn nursing home as COVID approached, and then as Mrs. Howze became very ill, that that was not providing health care in good faith," she says.

A Superior Court judge will decide whether to dismiss the case because of the immunity statute or allow it to continue, potentially giving Lisa Howze and her sisters their day in court.

New York Undercounted Nursing Home Death Toll by 56%; Scrutiny Turns to Other States

New York’s nursing-home death toll from COVID-19 may be more than 50 percent higher than officials claim, because Gov. Andrew Cuomo’s administration hasn’t revealed how many of those residents died in hospitals.  This according to state Attorney General Letitia James. 

James issued a damning, 76-page report, stating that some unidentified nursing homes apparently underreported resident fatalities to the state Department of Health and failed to enforce infection-control measures — with more than 20 currently under investigation.

The bombshell findings could push the current DOH tally of 8,711 deaths to more than 13,000, based on a survey of 62 nursing homes that found the state undercounted the fatalities there by an average of 56 percent.

The report further notes that at least 4,000 residents died after the state issued a controversial Cuomo administration mandate for nursing homes to admit “medically stable” coronavirus patients — which James said “may have put residents at increased risk of harm in some facilities.”

While the news from New York is horrific, New York is not alone in either poor policy that arguably caused increased nursing home COVID-19 death, or in efforts to conceal the numbers.  Daniel Greenfield, reporter for FrontPageMag began reporting on the story in April, 2020, in a story entitled, "1 in 5 Coronavirus Deaths Could Have Been Prevented by Securing Nursing Homes."  

Greenfield's article is partisan, and at times his rhetoric is incendiary, but it is quoted accurately lest one claim that the rhetoric was removed to make it seem less partisan; the reader can discern whether partisanship in whole or part colors the reportage towards inaccuracy.  He wrote:

"Over 7,000 of the country’s coronavirus deaths emerged out of nursing homes.

Of the 4,377 coronavirus deaths in New Jersey, over 1,700 died due to infections in nursing homes. That nearly 40% of coronavirus deaths in one of the hardest hit states took place in nursing homes casts a stark light on the misplaced priorities of blue states battling the pandemic by locking down houses of worship and small businesses, while putting few to no resources into protecting nursing home residents.

New Jersey’s coronavirus deaths were part of the coronavirus outbreak in 425 nursing homes. At one nursing home, after an anonymous tip, police found 17 bodies being stored in a shed.

Nearly 7,000 nursing home residents in the state have tested positive for coronavirus.

In neighboring New York, nearly 1 in 4 coronavirus deaths emerged from nursing homes. Those 3,060 deaths are only part of the story and represent an extremely incomplete picture. The Health Department had battled against releasing the information, claiming that it was protecting the privacy of residents. Even when the people pleading for the release of the information were their own loved ones.

In one facility, 17% of the residents have died. In 5 others, more than 10% are dead.

And even now, only data from a fraction of nursing homes in the state has been made public.

Why were New York authorities so reluctant to release the information? Even the partial data makes it all too clear that the severity of the death toll was not due to urban density, but poor oversight and response. If urban density were the issue, Manhattan would have some of the highest numbers. Instead it has among the lowest, while boroughs with sizable nursing homes have the highest numbers.

The actual nursing home death toll in New York may be closer to 3,316.

In New York City, while the official numbers peg it at 688, the actual numbers may be over 2,000.

And the death toll, actual or estimated, is only a part of a bigger picture with 8% of nursing home residents in the state testing positive for the virus. Those numbers make it painfully clear that the dying is likely to continue and that authorities have utterly failed to secure our most vulnerable population.

The Cuomo administration is blaming nursing homes. And while nursing homes often provide poor care and personnel often work in different facilities at the same time spreading the infection between them, it was the state that ordered facilities to accept coronavirus patients returning from the hospital.

Governor Cuomo's Department of Health had issued an order that, "no resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19" and also prohibited requiring testing of returning patients. Sending hospitalized patients with coronavirus to the same mismanaged nursing homes was a death sentence for countless seniors in those facilities.

As Betsy McCaughey, the former Republican lieutenant governor, has said, "One Covid-positive patient in a nursing home produces carnage.”

.     .     . 

In Connecticut, 40% of coronavirus fatalities emerged from nursing homes.

In Virginia, the majority of the coronavirus outbreaks have taken place in nursing homes. Like New York, Virginia’s Department of Health is refusing to release the names of the facilities with outbreaks.

That means loved ones have no way to know if their families are at risk.

Governor Ralph Northam's administration is continuing to engage in the cover-up even as a quarter of the population in one facility died of the coronavirus. That outbreak was the deadliest in America.

In Illinois, Governor Pritzker's administration had fought against providing the numbers of deaths and the identity of the nursing homes with outbreaks by claiming that it was protecting the privacy of residents, but finally began putting out some numbers about coronavirus deaths in nursing homes.

1 in 4 coronavirus deaths in Cook County, an area which includes Chicago, took place in nursing homes.

In Michigan, Governor Gretchen Whitmer's administration also refused to release the names of infected facilities. What information reporters have put together indicates that over a third of coronavirus deaths in Wayne County took place in nursing homes. Every nursing home in Detroit is infected.

“We have a crisis in our nursing homes,” Mayor Mike Duggan admitted, as 35% of nursing home residents tested had the virus.

In California, 29% of the deaths in Los Angeles County have taken place in nursing homes. In nearby Long Beach, it’s as high as 72%. In one Central Valley home, 156 residents tested positive and 8 died.

The Newsom administration, like its blue state counterparts, dragged its feet on releasing nursing home information, until its feet were held to the fire.

Governor Newsom is now claiming that nursing home residents are his top priority. “This state has a disproportionate number of aging and graying individuals, and we have a unique responsibility to take care of them and their caregivers.”

Except that California, like New York, was forcing care facilities to accept coronavirus patients discharged from hospitals. Newsom, like Cuomo, has blood on his manicured hands.

The ten deadliest outbreaks in this country have taken place in nursing homes and care facilities.

While officials around the country shut down churches and synagogues, arrested people for surfing and playing catch, and sent drones flying over their backyards, little was done to secure the estimated 4,100 nursing homes out of over 15,000 in the country where coronavirus was known to have taken root.

Even though the first coronavirus outbreak in this country took place in a nursing home in Washington, and killed 43 people, the CDC failed to track the spread of the virus to nursing homes nationwide.

Instead, the CDC has been relying on "informal outreach" to track the spread and has not updated its numbers since March.

The CDC's estimate of 400 nursing homes is only about 10% of the national total.

The Trump administration took an important step by ordering nursing homes to report coronavirus deaths to the CDC, and to the residents and their families. This move puts an end to the state stonewalling that covered up coronavirus cases and their own malfeasance.

It’s the beginning. Not the end."

Last May, Greenfield revisited the scandal.  He wrote:

"While New York had banned testing as a basis for nursing home admission, in Florida, a “COVID-19 test must be negative prior to transfer to a post-acute facility.

Governor DeSantis noted that his ban on sending coronavirus patients to nursing homes is the reason why the nursing home death toll was 13 times higher in New York and 25 times higher in New Jersey.

The media falsely claims that after at least 12,000 dead grandmas and grandpas, Cuomo, Whitmer, Murphy, and Newsom did a wonderful job, and DeSantis did a terrible one. Their measure of success isn’t in grandmas saved, but in small businesses shut down, people terrified, and government power made absolute."

And if the media gets to write the history of the pandemic, that is what our children will be taught."    

Greenfield wrote recently, in light of James' report:

"This is a story I broke back in the spring. It's steadily gotten worse since then as Cuomo's decision to force nursing homes to accept infected coronavirus patients helped lead to a massive death toll.

New York isn't unique in that regard. A number of Democrat states, including New Jersey and Pennsylvania, whose health secretary, Rick Levine, was picked by Biden as his assistant health secretary, did the same or similar things. But the death toll has been huge in New York and so has the cover-up.

Cuomo has refused to release the true numbers of fatalities. Now AG Letitia James, who seems to specialize in only political investigations, has a preliminary report about the real death toll.

That's an obvious shot at Cuomo and an indication she plans to run against him.

James and her office have very little credibility, but the report is worth looking at nonetheless."  

After reciting James' findings, he noted, "[a] more extensive report would line up facilities that had admitted infected patients with those with high death tolls and combine death tolls from facilities and hospitals."  More, a comprehensive assessment would consider tracing and identify how many cases owe as their source an infected institutional care resident or worker, or a family member of either.    

There are several takeaways from the whole sordid affair, regardless of the underlying debates regarding COVID-19, generally:

• First, health care has become a partisan issue, and the health and well-being of individuals is only one, and not always the primary, objective of partisans.
• Second, where partisanship exists, information must be read and evaluated critically; figures lie, and liars figure.
• Third, in a battle between the individual versus the institution, any single individual is largely powerless against any large institution, especially where that individual is vulnerable, and this is even more profoundly obvious over a short time frame.  Although an individual with the right ideas, like Martin Luther King, can effectuate change over time, the individual will rarely see immediate success, and as a result may suffer greatly in pursuing change.  
• Fourth, in planning for one's self and loved ones, one should, as much as possible, eschew broad institutional solutions, including those of the legal, health, and  financial systems.  Generally, these are supposed to, and in most cases, actually do protect the individual, but when they fail, they fail spectacularly. 
• Fifth, plan to age in place, and, therefore, implement a legal, health, financial, and social plan to communicate, implement, and empower that objective.    

Original Source: New York Post

Lawsuit Challenges Nursing Home Liability Protections for Non-COVID Death

Survivors of a former North Carolina nursing home resident are suing the facility where she died in what McKnight's Long-term Care News reports "could be a litmus test for the patchwork of liability protections granted to healthcare providers across the country."

North Carolina is one of nearly 30 states that extended nursing homes legal immunity to shield them from lawsuits during the pandemic. Nursing homes claimed that they need protection since they became ground zero for the contagion.  The industry  lobbied unsuccessfully for national liability protections. 

The family of Palestine Howze is pursuing a case against Treyburn Rehabilitation Center in Durham, NC, where she died in April of non-COVID causes. In many cases, immunity given during the pandemic extends beyond COVID-related cases.
The family’s lawsuit is believed to be the first of its kind to challenge nursing home immunity.” The family claims that Howze developed a pressure ulcer that became infected, and the facility declined to send her to the hospital for treatment citing the pandemic.

North Carolina passed its liability shield law a month after Howze’s death and made it retroactive to March 10, 2020. It runs through the end of the public health emergency, which is currently extended into April but is projected to be lengthened at least through 2021.

“For the Legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous and it’s unjust,” Elizabeth Todd, the family’s attorney, told NPR.

In October, a federal court ruled that a Pennsylvania nursing home could not claim preemption and federal immunity under the “Public Readiness and Emergency Preparedness Act,” or PREP Act. Although then-Sen. Majority Leader Mitch McConnell (R-KY) argued for federal corporate liability protections, he abandoned the fight in agreeing to a second COVID-19 relief package in December.
ProPublica and The News & Observer first reported on the Howze family’s suit.  A lawyer for Treyburn’s owner, Sovereign Healthcare Holdings, reportedly stated that “the case is defensible, factually and legally, and we would prefer to let the legal process run its course on both fronts.”

Many have expressed concern that protecting institutions from liability will only discourage institutions from behaviors and policies most likely to protect residents.  This is troubling given that more than 40% of COVID-19 death nationwide are attributed to long term institutional care facilities like nursing homes and assisted living facilities. New reports suggest the numbers of institutional care COVID-related deaths is frighteningly under reported. Legal experts have opined that facilities may still be held liable for gross negligence under the orders.  

The Howze case could prove the accuracy of the latter opinion. A North Carolina Superior Court judge must now decide whether to dismiss it because of the immunity statute or allow it to continue, possibly in arbitration. That could take months in a state where courts are already backed up due to the pandemic.

IRS Contests Value of Prince Estate, Who Died Without A Will Claiming Estate Worth $163.2 Million

The ongoing controversy over the money left behind by Prince when he died without a will is heating up again after Internal Revenue Service calculations showed that executors of the rock star's estate undervalued it by 50 percent, or about $80 million.

The IRS determined that Prince’s estate is worth $163.2 million, overshadowing the $82.3 million valuation submitted by Comerica Bank & Trust, the estate’s administrator. The discrepancy primarily involves Prince’s music publishing and recording interests, according to court documents.

Documents show the IRS believes that Prince's estate owes another $32.4 million in federal taxes, roughly doubling the tax bill based on Comerica’s valuation, the Star Tribune reported.

The IRS also has ordered a $6.4 million “accuracy-related penalty” on Prince’s estate, citing a “substantial” undervaluation of assets, documents show.

Prince’s death of a fentanyl overdose on April 21, 2016, created one of the largest and most complicated probate court proceedings in Minnesota history. Estimates of his net worth have varied widely, from $100 million to $300 million.

With Prince’s probate case dragging on, his six sibling heirs have grown increasingly unhappy, particularly as the estate has doled out tens of millions of dollars to lawyers and consultants.

Comerica and its lawyers at Fredrikson & Byron in Minneapolis maintain their estate valuations are solid. Comerica sued the IRS this summer in U.S. Tax Court in Washington, D.C., saying the agency’s calculations are riddled with errors.

“What we have here is a classic battle of the experts — the estate’s experts and the IRS’ experts,” said Dennis Patrick, an estate planning attorney at DeWitt LLP in Minneapolis who is not involved in the case. Valuing a large estate, Patrick added, “is way more of an art than a science.”

Comerica, a Dallas-based financial services giant, has asked the tax court to hold a trial in St. Paul. A trial could dramatically lengthen the settlement of Prince’s estate and generate more legal fees at the expense of Prince’s heirs, Patrick said.

Source: NBC News  

Picture: Photo 22858528 © Furesz | Dreamstime.com

Florida Investigates Nursing Home Reportedly Funneling Vaccines to Rich Donors

The State of Florida is investigating allegations that an upscale West Palm Beach nursing home diverted scarce COVID-19 vaccinations meant for residents and staff to members of the facility’s board of directors and donors.  

Appearing at a press conference in Vero Beach, Governor Ron DeSantis said that the Florida Department of Health was investigating reports that MorseLife Health System chief executive Keith Myers offered vaccinations to some of the long-term care facility’s board members and wealthy donors.  DeSantis said he also directed Florida Inspector General Melinda Miguel to investigate the allegations in stories published this week.

Emily Smith of Page Six reported that real estate moguls Bill and David S. Mack arranged for their “wealthy friends from Manhattan and the ritzy Palm Beach Country Club to get the COVID-19 vaccine at a Florida retirement home.”  The Washington Post reported that MorseLife made the vaccinations “available not just to its residents but to board members and those who made generous donations to the facility, including members of the Palm Beach Country Club, according to multiple people who were offered access, some of whom accepted it.”  DeSantis assured the public that Florida started the investigation “as soon as we found out about it.”

The governor’s remarks came on the heels of U.S. Sen. Rick Scott’s public call for an investigation into the allegation.  "It is absolutely disgusting and immoral that anyone would take vaccines intended for nursing home residents to distribute them to their friends," Scott, a Republican and former Florida governor, said in a statement. "This type of gross mismanagement will not be tolerated, and those responsible must be held accountable."

The federal government inked agreements last year with CVS and Walgreens to provide COVID-19 vaccinations to staff and residents of nursing homes and assisted-living facilities.  Hospital frontline health-care workers and residents of the long-term care facilities were the initial groups of people who qualified for Pfizer Inc. and Moderna vaccinations.

DeSantis on Dec. 23 announced that he was broadening eligibility to include all health care workers as well as people who are 65 or older.  The move led to chaos, resulting in jammed phone lines, overwhelmed websites and, in some instances, lines of seniors camping out over night to be first in line for vaccines.  In other words, it may be that the nursing home was simply providing the vaccine to its donors and others who it thought may have qualified under the broader DeSantis eligibility.  Regardless, the optics couldn't be worse for the nursing home provider.  

DeSantis emphasized Thursday that the vaccinations at the center of the controversy were not supplied by hospitals or county health departments, but were part of the federal arrangement with retail pharmacies.

“The nursing home and long-term care program is for residents and staff of long-term care facilities. That’s who it's for. Look, if you’re not a resident or a member of a long-term care facility but you’re 65 and up, there’s other options for you. We want you to get vaccinated. But to go under that rubric when you are not a resident and you’re not a staff member, that is definitely going outside of what the guidance is and what the program is for,” the governor said.

Potential Miracle Treatment Promoted by Feds for SNFs

COVID-19 monoclonal antibodies are now widely available for use by skilled nursing facilities  — and early results show promise, according to long-term care pharmacy leaders. Kimberly Marselas, writing for McKnight's Long-term Care News outlined the great news in her article, A potential ‘miracle’? Feds push monoclonal antibody treatments toward SNFs.  The following is an annotated reprint of her excellent article.

The Department of Health and Human Services’ (DHS) Project SPEED, or Special Projects for Equitable and Efficient Distribution, aims to get monoclonal treatment to COVID patients in non-hospital settings with priority populations, including nursing homes and assisted living facilities [some links added]. It goes beyond an earlier pilot spearheaded by CVS Health that targeted nursing homes and patients at home in seven cities with rapidly rising COVID rates.

The program is now open to any licensed pharmacy, said Chad Worz, PharmD, CEO and executive director of the American Society of Consultant Pharmacists, during an online update last week. He said LTC pharmacies around the country are beginning to add the therapeutic drugs, which mimic the body’s natural immune response, to their formularies.

As word spreads about availability, Worz expects increasing demand from skilled nursing providers who see antibodies as a way of mitigating COVID symptoms and preventing hospitalizations.

On the same webinar, T.J. Griffin, R.Ph., senior vice president of long-term care operations and chief pharmacy officer at PharMerica, said he is working closely with two nursing homes in Chicago and San Antonio that have used antibodies on a total of 70 patients since the program’s launch.

“The medical directors of both places have called it a miracle,” Griffin said. “So far, none of these patients have gone back to the hospital.”

Because most clinical data on monoclonal antibodies comes from hospitals, there’s not much evidence about its success in nursing home residents. But Griffin said he is working to gather and report information to HHS, and urged others to document and share patient responses.

Use protected during public health emergency

One pharmacist on the call noted a facility he worked with declined to administer the antibodies, citing liability concerns. But Worz said federal PREP Act protections would apply to skilled facilities that administer them safely and effectively and monitor for anaphylactic shock.

Arnold Clayman, ASCP’s vice president of pharmacy practice and government affairs, said infusion could be handled by staff members with an infusion license where required. Non-skilled facilities, or those without nurses to spare, could also tap into a separate program being led by the National Home Infusion Association in 46 states and Washington, D.C.

To date, only bamlanivimab, widely known as BAM, has been made available to LTC pharmacies. But Worz is also advocating for doses of Regeneron’s version, which requires pharmacists to compound casirivimab and imdevimab.

Both types of monoclonal antibodies received Emergency Use Authorization in mid-November with initial shipments sent to hospitals. But many said they were simply too busy treating severe COVID cases to deliver the outpatient therapy. As of late December, just 20% of the available antibodies had been used.

“That’s the reason they’re pushing it to long-term care, because (HHS) saw stockpiling in hospitals,” Worz said.

Wider use covered by CMS

Pharmacies can order for weekly delivery, or arrange for an emergency shipment in the case of a known outbreak, but Worz said HHS is tracking inventory to ensure the potentially life-saving product doesn’t continue to sit unused.

Medicare and Medicaid coverage of the use of monoclonal antibody therapy for COVID-19 treatments extends to beneficiaries in nursing homes at no cost during the public health emergency.

AMDA — The Society for Post-Acute and Long-Term Care Medicine, which initially expressed skepticism about the efficacy of antibody treatments in nursing homes because of a lack of data, has now partnered with ASCP to assist with Project Speed.

John Redd, M.D., MPH, chief medical officer, Office of the Assistant Secretary for Preparedness and Response at HHS, previously told McKnight’s that medical directors and physicians who care for long-term care patients are “crucial” to expanded delivery of the antibody treatment.

“We intend to engage them with every phase of the rollout,” he said.  “This therapeutic is intended to treat patients with COVID-19 risk factors who are early in their disease, which includes the majority of residents of long-term care facilities.”

Surprise! New Law Bans "Surprise" Medical Billing

A legislative "solution" to surprise billing managed to find it's way into the year-end spending and COVID-19 relief packages.  The heretofore elusive ban on surprise billing, ironically, comes as a surprise, albeit one welcome by consumers and advocates. 

“It seemed like déjà vu,” wrote Modern Healthcare’s Rachel Cohrs, “another mid-December bipartisan compromise on banning surprise medical bills negotiated behind closed doors is announced just days before a crucial end-of-year government funding deadline....[But] [u]nlike their 2019 failure, lawmakers this year succeeded in sealing the deal."  The surprise billing ban takes effect in 2022. 

Surprise bills occur:

 “when an out-of-network provider is unexpectedly involved in a patient’s care. Patients go to a hospital that accepts their insurance, for example, but get treated there by an emergency room physician who doesn’t. Such doctors often bill those patients for large fees, far higher than what health plans typically pay,"

explained Sarah Kliff and Margot Sanger-Katz,  writing for the The New York Times. 

According to Kliff and Sanger-Katz:

Academic researchers have found that millions of Americans receive these types of surprise bills each year, with as many as one in five emergency room visits resulting in such a charge. The bills most commonly come from health providers that patients are not able to select, such as emergency room physicians, anesthesiologists and ambulances. The average surprise charge for an emergency room visit is just above $600, but patients have received bills larger than $100,000 from out-of-network providers they did not select.  

The new law will make those surprise bills illegal. Instead of charging patients, health providers will now have to work with insurers to settle on a fair price. The new changes apply to doctors, hospitals and air ambulances.  The law does not apply to ground ambulances.

The new law requires insurers and medical providers who cannot agree on a payment rate to use an outside arbiter to decide. The arbiter would determine a fair amount based, in part, on what other doctors and hospitals are typically paid for similar services. Patients could be charged the kind of cost sharing they would pay for in-network services, but nothing more. Several states have set up their own arbitration systems, and have found that most price disputes are negotiated before an arbiter is involved. 

By the way, an excellent description of the legislative path for this welcome consumer protection, is provided by Modern Healthcare’s Rachel Cohrs, who has recited the work and effort expended both in support, and in opposition to the bill.  It is an interesting read.  

Wife Had Authority to Transfer Property to Herself Under a Power of Attorney

Planning for spouses is particularly tricky when one is acting one behalf of another and the latter is incompetent.   Transfer of assets to the healthy healthy spouse by the healthy spouse  from the assets of the impaired is troubling, raises the specter of "self-dealing" and often becomes fodder for legal contest.  North Dakota's highest court recently resolved such a case, permitting the transfer. The court ruled that a wife had authority under a power of attorney to transfer property to herself because her husband had an obligation to support her, so the transfers were made for consideration and were not gifts. Estate of Lindvig (N.D., Nos. 20200135 and 20200136, Nov. 19, 2020).

Ralph Lindvig’s Will gave his wife, Dorothy Lindvig, a life interest in his property and, on her death, transferred the property to his brothers. Mrs. Lindvig suffered from mobility issues due to childhood polio. Mr. Lindvig also named Mrs. Lindvig as his agent under a power of attorney. The power of attorney gave the agent the authority to transfer real estate for the purposes of estate planning, including transfers to the agent. It also provided authority to make gifts subject to the approval of a court in order to minimize taxes and maximize the estate for beneficiaries. 

Mr. Lindvig entered a nursing home. To help pay for his care, Mrs. Lindvig sold portions of his property to his brother. She also transferred mineral rights and property to herself. Mr. Lindvig died, and Mrs. Lindvig was the personal representative until her death a year later.

After Mrs. Lindvig’s death, Mr. Lindvig’s estate filed a petition to set aside the transfer of the mineral rights and the property because the transfers diminished the size of Mr. Lindvig’s estate and were not approved by a court. Ms. Lindvig’s estate argued that the transfers were made for consideration in the form of marital contributions and were not gifts. The court determined that the transfers were within Mrs. Lindvig’s authority, and Mr. Lindvig’s estate appealed.

The North Dakota Supreme Court affirmed, holding that the transfers were not gifts because Mrs. Lindvig required support and Mr. Lindvig had an obligation to support her from his property. According to the court, “because the transfers in this case were not gifts, the power of attorney’s gifting provisions do not apply” and Ms. Lindvig “had authority to make the transfers under the power of attorney’s real estate transfer provision.”

A Trustee Has a Duty to Preserve Trust for Beneficiaries, Not to Ensure Payment of Alimony to Grantor’s Ex-Wife

An Iowa appeals court recently ruled that a trustee of his father’s trust is not liable for interference with a contract when he stopped paying his father’s ex-wife alimony because his duty was to preserve the estate for the beneficiaries of the trust, not to ensure that she received alimony. Brownell v. Johnson (Iowa Ct. App., No. 19-0847, Nov. 4, 2020).  The case is an excellent example of the complications that arise in planning, and the complexity of analyzing the legal duties of fiduciaries, in this case a son who acted as both a trustee and an agent under a power of attorney.  

Phillip Johnson and Kathleen Brownell were a married couple when Phillip was diagnosed with cognitive impairment. In anticipation of applying for Medicaid, Phillip transferred all of his assets to a trust with his son, Scott Johnson, as successor trustee. Ms. Brownell filed for divorce, and under the divorce settlement, Ms. Brownell agreed to have no interest in the trust and Phillip agreed to pay her alimony. 

Phillip suffered a farm injury in July 2015, which injury coincided with Phillip’s mental decline.  He transitioned to a nursing home that same month. He continued to live there at the time of the underlying trial in January 2019. Phillip was at first not eligible for nursing home compensation through Medicaid because the Johnson Farm Account Trust had been set up within five years. Phillip became eligible in July 2017—when the five-year lookback period expired. Phillip paid Ms. Brownell alimony until he entered a nursing home, at which point Scott began managing his affairs as agent under a power of attorney.

Ms. Brownell sued Scott for intentional interference with a contract for failing to make the alimony payments. Scott testified that his duty as trustee was to qualify Phillip for Medicaid and preserve the family real estate, not to pay Ms. Brownell who had, as a result of the divorce, become a creditor of Phillip. The parties stipulated that she was owed $25,200 in alimony as of the trial. Kathleen further testified that she borrowed $2500 from a daughter, $4500 from another daughter, and $7698 from her son to live on while she was not receiving her alimony payments. She also testified she incurred about $19,000 in attorney fees and had taken $15,000 in cash value from the life 6 insurance policy to keep the payments up to date on that policy. Kathleen asked for $74,000 in damages. A trial was conducted and the jury found for Ms. Brownell, awarding her damages. 

Scott appealed. 

It is interesting to note that on appeal, the Iowa Academy of Trust and Estate Counsel sought leave to file an amicus brief, which the Iowa Supreme Court granted.  The amicus’s stated purpose in filing an appellate brief was to “assure that [our] disposition of the appeal does not result in the adoption of a standard that the trustee of a trust owes any duty to the creditor of a beneficiary of a trust when the trustee is making distributions to other beneficiaries of the trust in compliance with terms of the trust.” Brownell at p. 2-3. The Iowa Court of Appeals reversed, holding that Scott cannot be held liable under an interference with contract theory as a matter of law. The court ruled that “Scott, acting as the trustee, had to make decisions that were best for the beneficiaries without concerning himself whether those actions interfered with Phillip’s ability to make his alimony payments.” The court similarly found that Scott’s motives of “preserving assets for his father’s care and upholding the estate plan” were not improper under his role as agent. 

The court wrote that 

"...the trust and trustee owed no duty to Kathleen as a creditor of a trust beneficiary (Phillip). “Persons who may incidentally benefit in some manner from the performance of the trust are not beneficiaries of the trust and cannot enforce it.” Restatement (Third) of Trusts § 48 cmt. a (Am. Law. Inst. Oct. 2020 Update). The Iowa Academy of Trust and Estate Counsel raised this concern. And the amicus implores us to find that Scott had no duty to Phillip’s creditors when he, acting in his capacity as trustee in compliance with the terms of the trust, decided what distributions to make and to whom. The undisputed duty of loyalty of a trustee is to the beneficiaries of the trust, not the creditor of any beneficiary. Restatement (Third) of Trusts § 78(1).

First, both Kathleen and Scott confirmed that the trust purpose was twofold. One purpose was to qualify Phillip for Medicaid benefits, which required Phillip to maintain a limited net worth of $2000 and a limited monthly income. The second purpose was to ensure that Phillip’s sons retained the family real estate. To effectuate this purpose, Kathleen admits in her brief that after all real estate was transferred to the trust she “disclaimed and surrendered any and all interest she may have in the Trust.” Also with those goals in mind, Scott maintains he fulfilled his obligations as trustee in the manner he was supposed to; he stopped making income distributions to Phillip so that his father could remain eligible for Medicaid nursing home coverage. Then after the qualification for Medicaid, he transferred the trust assets to the beneficiaries to preserve their interests in the family real estate. Scott notes that he relied on the advice of several attorneys in taking these actions.

.     .     . 

Kathleen acknowledged the trust goals that Scott followed. But at trial and in her brief, she argues in his role as trustee, his failure to pay her interfered with her contract between herself and Phillip. But Kathleen is not a creditor of the trust. Even the jury found the trust owed her nothing. Thus, Scott, operating as trustee, owed Kathleen no fiduciary duty. See Iowa Code §633A.4202(1) (“A trustee shall administer the trust solely in the interests of the beneficiaries, and shall act with due regard to their respective interests.”).

[Second], drilling down to the specific improper conduct of Scott as agent, Kathleen argues Scott “felt entitled to pick and choose which bills ultimately got paid.” It then follows, under Kathleen’s theme, Scott was not acting on behalf of or in Phillip’s best interest. And Kathleen emphasizes that Scott testified he did not like that his father was ordered to pay alimony because he thought it was unfair. So does refusing to pay the principal’s creditor amount to improper conduct by the agent under an interference-of-contract claim? If we step back from this case, we would plow new ground to hold that an agent acting under a power of attorney must pay all bills of the principal or risk a claim of interference with a contract by a creditor. An agent, acting for the principal, might decide to prioritize which bills to pay, and if a creditor finds the action wrongful, the remedy is breach of contract. The motives of Scott in preserving assets for his father’s care and upholding the estate plan, which all parties acknowledged in this case, is not improper under his role as agent. Scott exercised financial discretion to protect his father’s legal rights, and Kathleen failed to prove his sole motivation was to defeat the alimony contract. [citation omitted, emphasis added]. Thus, the record does not support a finding of wrongful conduct against Scott as an agent for Phillip.     

The court noted that Ms. Brownell still has a breach of contract claim for alimony against Phillip. 

Feds Fail to Unlock Nursing Home “SLUSH FUND” to Fight COVID19

A Gray Media investigation has blown the lid off of one the nursing home industry’s most guarded secrets—it’s called the Civil Monetary Penalty Reinvestment Fund.

Nearly half a billion dollars of federally collected nursing home fines have flowed into the fund and now these monies are reportedly languishing in state coffers, accruing interest instead of being used to battle the coronavirus pandemic.  

Families for Better Care’s executive director Brian Lee calls the fund nothing more than a “slush fund” for nursing homes.

He says owners tap into the fund so they can offset operational costs and pad profits all in the name of so-called improvement.  He recalled one instance when “a nursing home that had been fined hundreds of thousands of dollars received a $27,000 grant to buy a bread-making machine, to build a snack stand and to train staff on how to stock the shelves.”  Lee visited the facility and was surprised by what he discovered.  “I expected the aroma of fresh-baked break to greet me when I walked in the door. I got the exact opposite,” he said. “I was immediately bowled over by the smell of urine and feces.”

Lee argues that the fund should be unlocked immediately by the Trump administration so nursing homes can acquire molecular rapid testing machines to prevent COVID19 spread, not so they can be held in reserve for some unhatched profit scheme.  

And the industry largely agrees. 

Mark Parkinson, the American Health Care Association’s president and chief executive officer, told Gray Media that the funds “should be utilized to improve patient care.”  

Nursing home fines should become part of the pandemic solution by “curbing infection-related problems, residents' falls and accidents, and abuse and neglect” rather than, as Parkinson describes, “frivolous” improvement projects that “should have been paid for through the nursing homes’ annual budget.”

But, there is this: CMS last year approved grants to nursing homes to buy an antique popcorn machine, create song playlists for residents and build gardens.  Awesome.

Good Idea: Rhode Island Lifespan Respite Project Work Initiative Increases Access to Respite Care While Training Nursing Students

The Rhode Island Lifespan Respite Project at the Rhode Island Office of Healthy Aging implemented a workforce development initiative, CareBreaks, to match student nurses with low to moderate income families who have no access to subsidized respite care. This model provides free respite care with an increased supply of volunteer respite providers and offers important hands-on experience for nursing students approaching career field entry. The Project developed a Support Family Caregivers Toolkit to assist interested nursing programs and other organizations replicate a similar respite clinical experience program. Marketing materials include a flyer and a video. 

The project recently received national attention from recognition ARCH National Respite Network and Resource Center. Hopefully this type of program will soon be a common solution across the country.