Biden Reverses Trump EO; Seniors Can No Longer Opt Out of Medicare

In October 2019, the Trump Administration issued an executive order allowing individuals receiving Social Security benefits to opt out of Medicare Part A coverage (E.O. 13890, Sec. 11).  In January 2021, the Biden Administration withdrew the Trump order, thereby reestablishing that Social Security benefits may not be severed from Medicare Part A coverage.

This issue is complicated, and although it is typically framed as either an assault to or protection of Medicare, the facts underlying the issue are often misunderstood and misrepresented.  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.

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.”

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.  Of course, the decision had nothing to say about whether such a path should exist, or indeed, about the merits or concerns the individual litigants raised. 

At the time the 2019 executive order was issued, the Center for Medicare Advocacy noted that allowing individuals to access Social Security benefits without participating in Medicare Part A coverage had been a "long-standing conservative goal" and could potentially damage the program:

“Allowing individuals who can self-fund their health care to decline Medicare erodes shared experiences, commitment to, and investments in our nation’s flagship insurance program, and therefore can erode widespread, popular support for the program and make it more susceptible to negative changes.” 

The group also stated that the Medicare risk pool would be fundamentally altered if healthier and wealthier people were permitted to opt out, but since Medicare is not private insurance one wonders why "risk pools," are even relevant. 

Regardless, separation from Medicare is no longer possible.   

Esther's Law Protects Ohio Seniors in Nursing and Rehabilitation Institutions by Permitting Cameras and Monitoring

Residents of Ohio’s nursing homes are permitted to place electronic monitoring devices in their rooms. “Esther’s Law” went into effect on March 23, 2022, after passing unanimously through the Ohio House and Senate and being signed by Governor Mike DeWine on December 22, 2021. This bipartisan legislation demonstrates that ridding Ohio is committed to reducing elder abuse generally, and particularly in institutions charged with caring for Ohio's vulnerable elderly residents. 

The genesis of Esther’s Law (Ohio Revised Code § 3721.60, et seq.), was a shocking video depicting the abuse of the bill’s namesake, Esther Piskor, at the hands of her nursing home care providers. Esther’s son Steve Piskor suspected his mother was the victim of abuse in an Ohio nursing home. In September 2011, Steve placed a hidden camera in his mother’s room which caught and documented six weeks of abuse. Nurses and aides threw Esther around the room, sprayed her in the face with unknown substances, and yelled at and neglected her. Mr. Piskor has since worked to ensure Elder Abuse will be driven out of Ohio’s nursing homes.

The law allows a nursing home resident, the resident’s guardian, or the resident's agent under a power of attorney, to authorize the installation of an electronic monitoring device in the resident's room under the following conditions: (1) the resident or the resident’s representative completes and submits a form to the facility, if the facility prescribes a form for the device and (2) the resident pays for the cost of the device and its upkeep. A resident may withdraw authorization at any time.

If the resident has a roommate, the consent of the other resident is required before any monitoring device may be installed. The roommate may consent based on certain conditions, such as agreed upon angling of the device, or limitations as to the use of the device. Devices must be installed and used in accordance with the consent of all residents residing in the room.

Nursing home operators and their staff should also be aware that the law requires reasonable attempts to accommodate residents to be made where a resident wishes to install an electronic monitoring device, but a roommate refuses to consent. Reasonable accommodation expressly includes moving the resident to another room where installation would be permitted if available.

The scope of Esther’s Law is currently limited to “long-term care” facilities defined as nursing homes and skilled nursing facilities and currently does not extend to assisted-living accommodations that do not meet the “long-term care facility” classification.  State legislators have indicated, however, that the scope of Esther’s Law may expand to other types of facilities in the near future.

Steve Piskor and the State Senators sponsoring Esther’s Law state that the goal of the law is to prevent abuse in the first instance, and not to be a reactive tool after abuse has occurred. This goal is made clear and is served by the law permitting long-term care facilities to place notices outside of the resident’s room to notify others that electronic monitoring is taking place.  In other words, the law is not intended to encourage secretive monitoring merely to encourage or facilitate litigation.

The law also prohibits any denial of admission, discharge, discrimination, or retaliation based on a resident’s decision to exercise the right to install an electronic monitoring device.  

Obviously, seniors and family members should seriously consider the use of such devices.  Keep in mind that even inexpensive and relatively unreliable devices will result in the placing of a notice that a device is electronic monitoring is taking place. Many home residents and merchants purchase signs advising that security systems and electronic surveillance exists, even where no such systems or devices are employed; deterrence is the first goal of any security or safety system or plan. 

SNF COVID Crisis Over? SNF COVID Deaths Fell 66% in Wake of Vaccine Clinics as Overall U.S. Fatalities Rose 61%

After a year of remarkable tragedy in nursing homes, a new analysis of federal COVID-19 data shows a significant drop in resident deaths in the weeks after vaccine clinics began, a trend made even more striking given the simultaneous spike in U.S. coronavirus deaths over the same period. The detailed analysis, courtesy of the Kaiser Family Foundation (KFF), paints a much-needed portrait of the COVID-19 pandemic as it has impacted, and continues to impact long-term term care facilities (LTCFs).  According to KFF, the final months of 2020 were the deadliest months of the pandemic for many LTCFs across the country, with over 26,000 COVID-19 deaths in LTCFs reported between Thanksgiving weekend and December 31, 2020. 

The end of 2020 saw the approval of the first coronavirus vaccines and the launch of vaccine administrations in LTCFs through the Pharmacy Partnership for Long-Term Care on December 21st, 2020 (Pfizer-BioNTech) and December 28th, 2020 (Moderna). As of February 22, 2021, about 4.5 million residents and staff have received one or more dose through the Partnership; over 2 million residents and staff have received both doses. In addition, some states and some LTCFs have vaccinated residents or staff outside the Partnership. Vaccinations have increased outside of LTCFs as well, though at a significantly lower rate. 

Weekly deaths in nursing homes fell 66% between the last week of December, when the federal government’s long-term care vaccination partnership with CVS and Walgreens ground into gear, and the first week of February, according to the Foundation.  That decline nonetheless represents more than 2,000 fatalities, but it came as nationwide deaths, excluding nursing homes, spiked 61% to nearly 20,000 during the week ended February 7, prompting the Foundation to ponder whether the end of the crisis in LTCFs has finally come into view.

KFF stopped short of definitively concluding that the vaccine clinics were the direct cause of the drop, noting that not every facility started the inoculation process on the same day, but the general association is obvious.

“According to the CDC, there has been strong evidence that the vaccines prevent severe illness and death, and the sharp divergence in deaths inside and outside of LTCFs is consistent with that evidence,” KFF observed. “In addition, given the emerging research around the vaccines’ ability to prevent transmission of the virus, there is reason to believe that the vaccine may be playing a part in reducing virus transmission within nursing homes, contributing to the more rapid decline in new cases in nursing facility residents than in the overall population.”

Total case numbers in nursing homes dropped 83% in the post-clinic period, far outpacing the 45% dip among the general, non-LTC population. “While cases have dropped both within and outside nursing facilities, new nursing facility resident cases peaked earlier (week ending December 20, 2020) as compared to in the general non-nursing facility resident population (week ending January 10, 2021) and declined at a faster rate in nursing facilities than outside nursing facilities,” KFF noted.

The most recent data marks a swift turnaround from record-high death counts seen in LTCFs at the beginning of 2021.  One in every 51 residents of LTCFs died during the four weeks bookending New Year’s Day, for a grim total of nearly 20,000, according to an AARP analysis.

“While the record high death rate in the four weeks ending Jan. 17 represents only a slight increase from the previous month, when 1 in every 53 residents died from COVID-19, it is more than a quadrupling of the resident death rate at the end of the summer,” AARP noted.

The gains also came amid continued concerns about relatively low uptake of vaccines among nursing home staff. Only 37.5% of workers accepted vaccinations during the first month of clinics, according to the Centers for Disease Control & Prevention (CDC), as compared to 77.8% of residents.  Meanwhile the debate regarding mandating vaccines roils. 

Sources:

"Nursing Home COVID Deaths Fell 66% in Wake of Vaccine Clinics — Even as Overall U.S. Fatalities Rose 61%," Skilled Nursing News, February 25, 2021.

Is the End of the Long-Term Care Crisis Within Sight? New COVID-19 Cases and Deaths in Long-Term Care Facilities Are Dropping, KFF, February 24, 2021.  

England's NHS Saves Lives with World Leading "Dead" Heart Transplants

More than 3,000 heart transplants were performed in the United States last year, according to the federal Organ Procurement Transportation Network (OPTN). These 3,000-plus patients were given the gift of life through the selfless act of organ donation by individuals and families who were faced with the opportunity to make a positive impact in the wake of tragedy. 

This number is truly amazing; the first successful heart transplant was performed  a little more than 50 years ago. Since then, heart transplantation has become more routine,  almost considered as routine as a bypass surgery. With advances in transplant technology, more people are seeking heart transplantation.  Tragically, there simply are not enough donor hearts to go around.  

There are currently nearly 4,000 people across the U.S. awaiting donor hearts, according to OPTN data. Unfortunately, a significant number of patients die before suitable donor hearts become available for transplantation. To meet this ever-growing need, the medical community seeks new and advanced procedures and treatments for heart failure while educating healthy community members how truly life-changing the gift of organ donation is for recipients, donors, and their families.

Finding a healthy living heart suitable and available for donation is difficult.  What if, however, hearts that had stopped could be used in donation.  What was once though impossible or unlikely may someday be routine, thanks to the doctors in England's National Health Service (NHS).

Anna Hadley, a 16-year-old from Worcester, waited for nearly two years for a new heart. Now, almost two years later, Anna is healthy and playing hockey again. Anna has British surgeons to thank, as they "carried out the world's first transplants in children using dead hearts that were brought back to life." 

The surgeons used a pioneering machine to reanimate hearts from donors whose hearts stopped. So far, use of the machine has saved the lives of six British children ranging in age form 12 to 16. Each of the transplants occurred during the pandemic. 

Anna was the first to have her life saved by the pioneering machine. She received the call at 2:30am after she had waited almost two years after being diagnosed with restrictive cardiomyopathy. 

Within 24 hours of the operation, Anna was sitting up in bed. Within weeks, Anna was playing hockey again. Anna said, "I just feel normal again. There's nothing I cannot do now."

Source: Andrew Gregory, NHS saves children’s lives with world-first ‘dead’ heart transplants, The Sunday Times (U.K.), February 20, 2021. 

One Man's Effort to Recover $280 Million in Bitcoin He Accidentally Threw Away

Another object lesson regarding the risks of crypto-currency investing comes by way of James Howells, a 35-year-old IT engineer from Wales.  Howells accidentally threw out a hard drive on which he had stored 7,500 bitcoins.  Although reports did not indicate his initial investment, assuming he purchased the bitcoin in April, of 2011, his initial investment was $7500.00.  The bitcoins are worth about $280 million at today's prices (in April of 2011, the price of a bitcoin skyrocketed to $32 a coin).  

Howells said he had two identical laptop hard drives and he accidentally threw the drive with the cryptographic "private key" that he needed to access his coins in the trash. 

Howells is reportedly confident that he would be able to retrieve the key and recover the bitcoin. If the platter inside the hard drove is still intact, data recovery experts could rebuild the drive and read the data from the platter. The drive, which he threw away eight years ago, is the only way to regain access to the coins. 

Unfortunately, retrieving the hard drive would not be an easy task. Howells will first need to gain permission from local council to search the garbage dump since the landfill is not open to the public. After that, Howells would have to dig through eight years worth of garbage. 

Howells has offered to donate 25% (around $70.8 million) of the bitcoin to a Covid Relief Fund for his city if he is able to find the drive. Unfortunately, city council has rejected his requests so far and they are showing no signs of letting up any time soon. 

For more information, including information on how you might avoid these risks, see the following prior blog posts:

The Strange Case of Crypto Exchange QuadrigaCX: Death and a Missing $200 Million

LegalVault® Offers Solution to Estate Planning Challenges of Bitcoin and Cryptocurrencies 

Source: Man makes last-ditch effort to recover $280 million in bitcoin he accidentally threw out, CNBC News, January 15, 2021.

Winner of $188M Powerball Sued By Her Ex-fiance Inmate

I advise lottery players to consider the implications of winning, and strongly recommend that they retain legal and tax counsel BEFORE collecting winnings.  In some states, it is possible to collect lottery winnings through a trust, keeping the actual winner's name confidential from family, friends, and those who are neither.  

An object lesson why such planning is important comes in the case of Marie Holmes, the winner  of the $188 million Powerball jackpot in 2015, which was the largest jackpot winnings in North Carolina history. After taxes, the winnings amounted to $87.9 million. 

Ms. Holmes was certainly a person blessed by the winnings; she was working five jobs when she won.  She stated that she planned to give a portion of her winnings to charities and religious organizations, and to use some of the money to go back to college and buy her mother a house. 

Holmes' ex-fiance, Lamarr Andre McDow, claims that Holmes spent money on generous and lavish gifts for him. McDow alleges that Holmes has given away or sold these gifts after they split up and now he is suing to get them back. 

McDow claims that Holmes breached her fiduciary duty "when she reportedly gave away his 77-acre dirt bike track, his car repair shop and tens of thousands of dollars worth of clothing and jewelry while he was in prison." 

Holmes' defense attorney stated in a motion to dismiss, “This case is the embodiment of the phrase ‘[w]hat’s yours is mine and what’s mine is my own.’ The problem here, however, is that McDow has nothing of his own.”

McDow was convicted of drug trafficking in April 2016 and was sentenced to 10 years in prison. He is projected to be released in June 2023. 

McDow made Holmes his power of attorney before he went to prison. 

Apparently, McDow heard that Holmes began dating someone else after their split, and began giving away McDow's things. According to McDow's attorney, “Ms. Holmes’ unconditional obligation to act in the best interests of Mr. McDow didn’t stop because Ms. Holmes and Mr. McDow’s relationship ended.” 

As of now, McDow has not responded to the motion to dismiss. 

It seems likely that McDow would not have filed any lawsuit against his ex-fiancée, a person then-working five jobs to make ends meet, but for her good fortune.  No one knows for sure, but one wonders whether a little planning would have avoided the dispute.  Worse, each time Ms. Holmes is "in the news" regarding her winnings, more people people become aware of her good fortune, and might resolve to insinuate themselves in her life in order to realize benefit.  Planning might have avoided these challenges.  

Source: She won $188M Powerball. Now her ex-fiance is suing her from prison, NC lawsuit says, Yahoo News, February 21, 2021.

Infection Control Citations Exceed 12,000 Amid Pandemic; SNF Ratings Stagnant

Despite more than 12,000 infection control-related citations issued during the COVID-19 pandemic, most U.S. nursing homes saw no  ratings change in updated Five-Star guidance published recently, according to an article in McKnight's Long-term Care News.

According to McKnight's, Formation Healthcare Group found in analyzing the data that the prevalence of citations has not changed drastically during the pandemic, with the average health tags cited per facility dropping to 8.1 from a prior average of 8.2.  

Among more than 22,000 citations issued, more than 12,000 were related to infection control, a factor the Centers for Medicare & Medicaid Services (CMS) initially said would not affect star ratings used by the public. The agency reversed course in December.  Many were critical of the reversal, even as the new ratings were published.

Jessica Curtis, Formation’s managing partner, explained to McKnight's that infection control citations are being driven by the mandated infection control-focused surveys during the pandemic. A group of six frequent F-tags accounted for more than 8,000 citations.

Despite the inclusion of infection measures in the star calculation, nearly 12,000 facilities saw no change in their health inspection ranking, according to an analysis by Steven Littlehale, Chief Innovation Officer at Zimmet Healthcare Services Group. .

About 2,800 gained one star or more for improved RN staffing ratings, while fewer than 2,400 saw that factor drop one star or more. Nationally, staffing levels were higher in January 2021 than they were in January 2019 and 2020.  In 2019, one-third of institutions saw a rating drop specifically due to staffing levels, thanks in part to a new survey method preventing institutions from misrepresenting their level of staffing.  In all other categories, the number of institutions gaining a star or more was essentially the same as the number losing one or more.

Overall, 9,937 facilities, or about 66% nationwide, kept the same overall star rating.  

“From a macro view, this is a lot to do about nothing,” Littlehale told McKnight’s Long-Term Care News. “If you’re the provider holding the bag, being dropped from a preferred provider network, triggering loan covenants or consternation from a family member, it means something.” 

He noted that the update includes two quarters worth of COVID-impacted outcomes. He suspects a “national dip” is more likely once all of the 2020 MDS-based outcomes are calculated.

As for the “abuse” icon adopted by CMS in 2019, 459 facilities will see the icon disappear from their listing based on the latest numbers, while 262 facilities will get one.  That doesn't suggest that the incidence of reported abuse has declined, however, just that the number of facilities with a reportable incidence of abuse has declined.   Moreover, while the rating system is helpful in comparing institutions, the rating system does not accurately reflect resident safety.   

The latest star ratings also reveal major variations in how and how well states are performing their inspection duties.  “The percentage of facilities receiving deficiencies during infection control surveys vary considerably across the states,” Littlehale said. “Some states see over 60% of their facilities with IC deficiencies, while other states (are) as low as 6%.”

Littlehale told McKnight's  that the wide variation was not directly attributable to COVID outbreaks.

Analysts at Formation Healthcare likewise found discrepancies between states in reporting. Shockingly,  several states are far behind in conducting health inspections. For example, Oregon (37%), Georgia (31%), Maryland (26%) and Virginia (21%) led the nation in the share of SNFs last inspected more than two years ago.   In other words, in some states, the data on nursing homes may be inaccurate or outdated for almost one-third of the state's institutions. 

The pandemic, governments' response to the pandemic, and institutional safety and quality are only making more arguments for the already overwhelming case for aging in place.  Plan now. 

AARP Nursing Home COVID-19 Dashboard

The COVID-19 pandemic has swept the nation, killing more than 160,000 residents and staff of nursing homes and other long-term care facilities. The AARP Public Policy Institute, in collaboration with the Scripps Gerontology Center at Miami University in Ohio, created the AARP Nursing Home COVID-19 Dashboard to provide four-week snapshots of the virus’ infiltration into nursing homes and impact on nursing home residents and staff, with the goal of identifying specific areas of concern at the national and state levels in a timely manner. The dashboard looks at five categories of impact and will be updated every month to track trends over time. 

In addition, the dashboard site provides a link to state and national fact sheets with 33 additional data points providing more information about each dashboard category.  

This February 2021 dashboard release (with data for the four weeks ending January 17, 2021) shows how the COVID-19 situation in nursing homes has changed dramatically since the summer when data became available:

Among the most concerning data is that relating to staffing shortages.  Staffing shortages continue to be an ongoing problem throughout the pandemic, with 29% of nursing homes reporting a shortage of nurses or aides in the last 4 weeks.  Going back to June 2020, in every four-week period, more than one quarter of nursing homes have reported a shortage of direct care staff.  

The rates of COVID-19 deaths and cases in nursing homes remain staggeringly high as we enter the new year.  The resident death rate reached a new high, increasing from 1.88 per 100 residents in the previous four-week period to 1.95 per 100 residents in the four weeks ending January 17. 

New resident cases declined slightly from 10.8 to 9.2 per 100 residents, and new staff cases also declined from 9.3 to 8.3 per 100 residents.  These most recent case rates are still more than 3 times as high as the rates in late summer and early fall when AARP launched the dashboard, and only slightly lower than the record high numbers the previous month.

Counting both residents and staff, there were nearly 20,000 COVID-19 deaths and more than 170,000 new confirmed COVID-19 cases in nursing homes in the four weeks ending January 17.

There is considerable variation across states in both the magnitude of COVID-19 impacts, and the trajectory of those impacts.

Compared to the previous four weeks ending December 20, the resident death rate per 100 residents increased in 24 states (including Washington DC), and declined in 27 states.

Compared to the four weeks ending December 20, the rates of new resident cases and new staff cases each declined in two-thirds of states (34 states) and increased in the remaining third (17 states, including Washington DC). 

In every state, nursing homes continue to indicate a shortage of PPE (defined as not having a one-week supply of N95 masks, surgical masks, gowns, gloves, and eye protection during the last four weeks). Nationally, about 14% of nursing homes had a PPE shortage during the four weeks ending January 17, 2021.  This is a significant improvement from 18% in the previous monthly Dashboard and 28% in the summer.  Still, this means that about 1 in 7 nursing homes do not have a one-week supply of PPE during a time when deaths and are close to record highs. There is considerable variation in PPE supply among states: the proportion of nursing homes without a one-week supply of PPE ranged from less than 2% to as high as 42%.

Vaccine Mandates Threaten Viability of the Long-term Care Industry

Some long-term care facilities are mandating  COVID-19 vaccines among staff.  Mandates divide the industry in profound ways, and threaten a myriad of legal challenges.

Lauren Clason has penned an excellent article for Congressional Quarterly Roll Call, warning that vaccine mandates "have sparked ethical and legal concerns and [already] prompted some nursing home workers to quit."

The Brief History of the Vaccine

It is important, in considering the impact of the vaccine and associated mandates, to appreciate the brief history of the vaccine.  Bluntly, it is neither normal nor organic.  On December 11, 2020, the FDA issued an Emergency Use Authorization ("EUA") for the Pfizer-BioNTech COVID-19 vaccine. Two days later, the first shipment of the vaccine left the manufacturing plant. Vaccinations began on December 14, 2020. Subsequently, on December 18, 2020, the FDA issued an EUA for the Moderna COVID-19 vaccine. The first shipments of the Moderna vaccine left a distribution center on December 20, 2020. An FDA report issued on December 8, 2020, highlights the unknowns that exist when a vaccine receives an EUA, including the limited amount of data to support the effectiveness of the Pfizer-BioNTech vaccine against asymptomatic infection and its unknown effect against transmission of COVID-19 from individuals who are infected despite vaccination. 

While many articles implicitly or explicitly assail workers (or anyone) who expresses doubts or concerns regarding the vaccine, these authors ignore the the "unknowns" that inherently exists when a vaccine receives an EUA.  Whether these "unknowns" merit refusal or delay, is not an objective fact, notwithstanding the narrative of most authors.  Worse, failure to acknowledge rational concerns only substantiates irrational concerns;  the motives of vaccine proponents are more readily assailable when they are not truthful about "unknowns."    

Regardless, long-term care workers have not rushed to receive the vaccine as public health experts battle everything from unsubstantiated conspiracy theories to the simple fears that come with a novel virus and a more novel vaccine. In context, however, the historical success with vaccination utilization by long-term care industry staff is poor; nursing homes historically trail other health care institutions in vaccinations (see CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations). 

The Law

At the federal level, the Equal Employment Opportunity Commission ("EEOC") has determined that COVID-19 meets the direct threat standard, meaning that "a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time."   The Equal Employment Opportunity Commission (EEOC) issued guidance in December clearing COVID-19 vaccine mandates in accordance with laws like the Americans with Disabilities Act. 

The EEOC's guidance acknowledges without explanation that the FDA has an obligation to "[e]nsure that recipients of [a] vaccine under an EUA are informed … that they have the option to accept or refuse the vaccine." Based on the EEOC's guidance to date, "a mandatory vaccination policy, with appropriate carve-outs for individuals with disabilities and sincerely held religious beliefs, may be permissible under federal law," according to the excellent analysis of one of the most respected firms in America, Jones Day..  

But, even if it is lawful, there are problems: 

"Namely, no federal agency has endorsed employer-mandated COVID-19 vaccinations explicitly, and historically these agencies have stopped short of endorsing mandatory vaccinations outside of certain industries; courts may disagree with a conclusion by the EEOC that mandatory vaccination is lawful; and there is a lack of legal precedent supportive of across-the-board mandatory vaccinations for all job positions in all industries. Moreover, even if mandatory vaccination is found lawful under federal law, such a policy carries additional risks, including potential liability under state law and damage to employee relations. And notwithstanding workers' compensation exclusivity, there is an open question whether tort or similar liability could attach to an employer, and under what circumstances, if employees are harmed by an employer-mandated vaccine.  

Simply, the law pertaining specifically to emergency use authorizations, which require less efficacy and safety data than a full approval, is unclear.  Dorit Reiss, a professor at University of California, Hastings College of the Law told CQ RollCall:

The law requires that recipients be informed of the right to refuse a vaccine under emergency authorizations, but also that they be informed of the consequences. Whether the consequences can include losing one’s job is unclear.  If it goes to court, I think it’s a 50-50." 

While incentives for mandating the vaccine in elderly care setting are strong, so are the disincentives and potential disadvantages.  Employers might expose themselves to tort and negligence claims if something goes wrong, Robin Shea, a Constangy Brooks, Smith and Prophete partner told CQ Roll Call, adding:

“I would be concerned about that, and in a non-health care workplace, I would be thinking about that really hard before mandating it.”

Conclusion?  There is risk everywhere.  

Tearing Apart the Industry

As a result, the vaccine threatens the industry with workforce uncertainty and public mistrust, all amid threats of legal disputes as institutions contend with union agreements, state laws, and the vaccines’ lack of full Food and Drug Administration approval.  A vaccine mandate also raises ethical issues. Clasen writes:

"Distrust in the government is widespread among low-income communities of color, which make up a disproportionate share of the long-term care workforce. Undergoing a mandatory vaccination from whiter, wealthier bosses seems disrespectful of their historic marginalization, worker advocates say. Distrust among white staffers is also widespread."

“Our members deserve to be heard on why they’re hesitant, and there are many reasons for it that aren’t ridiculous,” Lori Porter, CEO of the National Association of Health Care Assistants, which represents 26,000 certified nursing assistants, or CNAs, told CQ RollCall.  

National polls show that as many as 70 percent of long-term care staff are still wary of the vaccine, Porter told CQ RollCall. Polling among NAHCA members is better, with about 50 percent of workers saying they’d take it.

Many CNAs are leaving the centers that are mandating vaccines.  No nursing center in America today can afford to lose CNAs.  According to Porter, there are "more than 170,000 openings for certified nursing assistants in skilled nursing facilities alone. The annual turnover rate stands at 120 percent."  Locally, the Ohio National Guard was dispatched to help staff a nursing home when staff simply failed to show up for work.  The Ohio National Guard served capably in that role, having in certain instances assisted with staffing institutions reeling from infection and self-quarantines.    

Clasen interviewed Shanna Lacy, a 38-year-old nursing assistant at an Iowa nursing home, who is, according to Clasen "opting out of the vaccine over concerns about unknown long-term effects, driven by the vaccine’s fast-tracked timeline coupled with her distrust in government."

“I don’t feel like any corporation or government or whoever should make somebody do something to their body that they don’t want to,” Lacy told CQ Roll Call.

Lacy reportedly enjoys working at her facility and told CQ RollCall that she gets the flu vaccine every year. But, she said, the pandemic is not severe where she lives, and her belief in former President Donald Trump’s claims that he won the 2020 presidential election further undermines her trust in the government’s vaccine operation. 

Lacy’s nursing home offers prize drawings to employees who take the vaccine, she said, while those who don’t are tested three days a week. She has not been told the facility would require her to take the vaccine, but if that happens, she told CQ RollCall she would find work elsewhere, or maybe even leave the field:

“I could work at a McDonald’s flipping burgers, making the same amount and not being made to take this vaccine,” she said. “Do I want to work at McDonald’s? No, I don’t. But if I had to, I would.” 

Mandates for other vaccines like the flu are common, but requiring a vaccine authorized on an emergency basis is new ground. The Atria Senior Living chain is requiring all 14,000 of its staffers to be vaccinated by May 1:  

“We’re very strong in the belief that our residents deserve to live in a vaccinated environment, and our staff deserves to work in a vaccinated environment,” CEO John Moore told CQ Roll Call. “And it’s a privilege to have access to the vaccine early.” 

Moore reported that the number of staffers who had quit since implementing the mandate was low, but that staffers who ultimately refuse the vaccine will be let go.  What constitutes "low" in an industry with 120% turnover, with a deadline still months away is unclear in the CQRollCall article. 

According to Moore and CQ RollCall, dozens of other facilities are implementing vaccine mandates: 

“No one wanted COVID. No one chose COVID,” Moore said. “There are no perfect answers. There’s only the next best answer, and that’s what we keep searching for."

In Pennsylvania, a vaccine mandate in a nursing home operated by Bucks County sparked a union dispute. The American Federation of State, County and Municipal Employees (AFSCME) filed a grievance with Neshaminy Manor, arguing that changes to employment terms are a bargaining issue under state law.

“I really feel as though this is something that can be worked out,” AFSCME District Council 88 Director Tom Tosti told CQ RollCall. “The workers there in that manor — and across every nursing home facility and every facility, whether it has mental health patients or whatever — have been working tirelessly since this pandemic hit. And to turn around and say now you’re mandated to put something into your body or you’re getting terminated isn’t fair at all for what they’ve done this past year.”

Bucks County says the mandate is on solid legal footing, pointing to the toll the coronavirus takes on the elderly. The facility lost 86 patients to the virus.

“Any staff that has not been vaccinated by the end of March could be laid off,” the county said in a statement.  

The emotions of the decision for workers are often overlooked, Pennsylvania COVID-19 task force member Joshua Uy, medical director at Renaissance Healthcare and Rehabilitation Center in Philadelphia told CQ RollCall. Explaining the mechanics of the vaccine doesn’t necessarily erase fear. According to the CQ RollCall article, all of Renaissance’s residents were vaccinated compared with only 50 percent of its staff. Uy focuses on highlighting positive emotions that the vaccine can bring, such as ending isolation. 

“I’ll try to remind them not to ignore what they’re feeling, but to sort of add other emotions, like this vaccine is hope,” he said. 

Porter said NAHCA is considering a project to leverage the families of long-term care patients. 

“CNAs don’t trust government. CNAs don’t trust their employers,” she said. “CNAs trust CNAs. Those two obstacles in the trust run deep.” 

Relying on personal doctors, whom polling shows are a trusted source for many people, doesn’t always work. In Missouri, where NAHCA is based, many doctors weren’t wearing masks as recently as December, she said.

Porter also stresses that receiving priority for a vaccine with the potential to end a pandemic is an unprecedented industry victory:

“We continue to tell our members that this was a win for us,” she said. “Don’t let it be in vain.”

The public watches intently as the drama unfolds.  Perhaps, rather than just feeding a collective fear of institutions, the public will orient its planning toward aging in place, thereby relieving stress upon both the long-term care industry and families seeking to cope with short and long-term care. 

Larry King's 2019 "Hand-written" Will Omits Wife and Splits His $50M Estate Among His Children

Celebrity estates create interest in estate planning, and are often object lessons in either poor or exceptional estate planning. The estate of late broadcasting legend Larry King, is no exception. 

King died of sepsis on January 23rd at the age of 87. King reportedly left behind a hand-written Will "advising for an even split of his fortune to his five children in the event of his death." Larry King was reportedly worth around $50 million at the time of his death. 

The Will was reportedly written on October 17, 2019, coming just two months after he filed for divorce. His seventh wife (whom he intended on divorcing), Shawn Southwick, was entirely omitted from the handwritten Will. 

The document reads, "[t]his is my Last Will & Testament. It should replace all previous writings." The Will stated that King wanted "100 percent of his funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance, and Cannon." King's son Andy passed away of a heart attack in July 2020 and his daughter Chaia, died in August after being diagnosed with lung cancer. 

There was no clear reporting whether the Will was admitted to probate, and of course, at this early date, whether King's wife (intended ex-wife) will contest the Will or exercise what may be her spousal rights under state law.  

Source: Tracy Wright, "Larry King left a 'hand-written will' in 2019 seeking equal split of his $50M fortune to his five children... and leaves out ex-wife Shawn," Daily Mail (U.K.), February 11, 2021. 

Only 37% of Long-term Care Facilities Staff Vaccinated for COVID-19

While residents of nursing homes and their caregivers have been considered a top priority for COVID-19 vaccination, only 38% of nursing home staff accepted shots when they were offered.  This according a survey conducted by the Centers for Disease Control and Prevention (CDC). 

Anecdotal reports have been circulating for weeks that nursing home staff members were turning down vaccination offers, but these are the first national-level figures.  Of course, historically, nursing homes trail other health care institutions in the staff penetration of vaccines (see CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations). 

Dr. Radhika Gharpure, lead author of the study and a member of the CDC’s Vaccine Task Force wrote, "These findings show we have a lot of work to do to increase confidence and also really understand the barriers to vaccination amongst this population." The report cited previous polling data to suggest why employees have been declining vaccines. Many raised concerns about vaccine side effects. Others said they didn't want to be among the first to receive the vaccines, which were first authorized in December. Some said they didn't trust the government, or referenced false claims about the shots.

Residents, meanwhile, have been much more accepting of vaccines, with 78% receiving at least one shot, according to the new report, which examined vaccination rates at more than 11,000 long-term care facilities nationwide between Dec. 18 and Jan. 17.

Source, "Roughly one-third of long-term care staff vaccinated through federal program: CDC," The Hill (2/1/21).

Nursing Home Chain $5.2 Million Bonus to CEO Amid Pandemic Draws Ire

Photo 59252501 © Lightboxx | Dreamstime.com

A nursing home chain gave its former CEO a $5.2 million “retention payment” at the height of the pandemic drawing a sharp rebuke from Sen. Elizabeth Warren (D-Mass.), who sits on the Senate’s Special Committee on Aging.  Genesis operates more than 300 nursing homes across the country. More than 2,800 of its residents have died of covid-19, and despite receiving more than $300 million in state and federal emergency aid, the company said its finances are so bad that it may not be able to continue as a going concern. 

"Sen. Warren calls Genesis Healthcare executive bonus act of ‘unfathomable greed’" reads the headline to the article published in the Washington Post.  According to the article, Warren characterized the compensation as "inexplicable and unseemly” in a letter dated Jan. 27. She asked the company board to explain its decision and to provide the minutes of all meetings in 2020 where compensation was discussed. Warren also warned the company not to seek additional emergency relief from Washington.

Senator Warren's letter is available here. 

Hands-free Shoes Courtesy of Nike- The Aging in Place Connection

Go Flyease by Nike
image used under fair use

Nike has announced innovative hands-free shoes called Go Flyease. The CNN article,  "Nike Made a Hands-free Shoe and You Have to See it to Believe it," describes the new shoe:

"[I]t's Nike's first pair of lace-less sneakers that can easily be put on and taken off without using your hands. The casual shoe arrives at a time when people are touching fewer things during the pandemic and a revival of comfier counterparts that take minimal effort to take on and off...."  

The description and the video demo suggest that  donning the shoes is easy and comfortable.  These are not just traditional slip-ons, like slippers, moccasins, or crocs, which often require hands to either put on or adjust, and often fit quite loosely.  The shoe actually snaps in place around the foot when stepping into the shoe.  The article explains that:

"[t]he Go Flyease has unique features, including a tension band that secures the shoe in place of laces. Putting them on involves just stepping into the shoe so that it will snap into place. Taking them off is done by stepping on the heel." 

Aside from pandemic justification, the shoes make aging in place easier, permitting anyone to don or shed shoes without the assistance of another, and without the danger that often accompanies too loose fitting shoes, especially for folks with impaired sensitivity in their extremities. Reduced flexibility, injury, joint pain; all of these conditions sometimes make putting on and tying shoes difficult.  No longer will seniors have to accept the trade-off of a trip hazard for comfort, convenience and ease.  Congratulations Nike!  

The shoe is not yet available for order, but when it is available, you can order a pair here.  

Long-term Care Industry Forecast to Lose $94 Billion Amid Pandemic

The long-term care industry will lose $94 billion over a two-year period as a result of COVID-related costs and revenue losses, according to a new forecast from the nation’s largest nursing home association. 

The American Health Care Association/National Center for Assisted Living detailed its projections Tuesday. Its analysis found that providers spent an estimated $30 billion in 2020 on COVID-related costs, such as hiring more staff members and purchasing personal protective equipment. That number is projected to be $30 billion again for 2021.

In terms of revenue, nursing home operators have lost $11.3 billion in 2021. Provider losses are projected to rise to $22.6 billion in 2021, according to AHCA/NCAL.  

The combination of revenue declines and increased costs resulted in 143 facility closures and mergers in 2020, the report stated. That’s projected to reach 1,670 closures/mergers in 2021 if business conditions do not change. 

AHCA/NCAL is an industry advocate, of course, but it claims the findings justify the need for additional and immediate support for long-term care. The association called for allocating $20 billion to the long-term care industry through enhanced Federal Medicaid Assistance Percentage (FMAP) for long-term services and support, or through a dedicated portion to the Provider Relief Fund, top priority for vaccine distribution and access to testing and supplies. 

“Congress and the Biden Administration must prioritize the long-term care industry and ensure the dedicated front-line workers of these facilities have the necessary resources to protect their residents and themselves,” AHCA/NCAL warned.

Of course, consumers, in the end have the most to lose.  Concerns regarding quality care, security, and staffing, for example, are only heightened when the industry is not profitable.  

Source:  D. Brown, "Long-term care to lose $94 billion due to pandemic: forecast," McKnight's Long-term Care News.