Covid-19 and Elder Abuse- Increasing Risk to an Already Vulnerable Population.

Coronavirus disease 2019 (COVID-19) is particularly destructive to older adults.  In addition to the heightened risk of morbidity and mortality, there has been a massive increase in reports of elder abuse during the pandemic.  Reports of elder abuse range from financial scams to incidents of family violence.  Warnings of abuse have been issued by the Federal Trade Commission (FTC) and the American Bar Association (ABA), as well as countless advocacy groups and service organizations.

The Centers for Disease Control and Prevention (CDC) defines elder abuse as an intentional act or failure to act by a caregiver or another person in a relationship involving an expectation of trust that causes or creates a risk of harm to an older adult. Abuse of older adults can be physical, emotional, financial, neglect, or any combination of these.

This knowledge regarding the health risks likely exacerbates already high rates of depressive and anxiety symptoms,resulting in an even greater multidimensional state of vulnerability. The many necessary social distancing programs currently in place additionally create a growing dependency on others for the completion of daily living activities, and this dependency can be viewed as another vulnerability.The documented negative health effects of social isolation and loneliness in old age will undoubtedly intensify during the pandemic.  Social isolation is one of the strongest social characteristics contributing to the risk of elder abuse.

Shelter-in-place” orders in effect to promote social distancing, and increased dependency of older adults on others, means the potential for elder abuse is  heightened; perpetrators of abuse are often close relations.  The risks also increase as more strangers opportunistically attempt to take advantage of the fearful situation to exploit older adults for financial gain. 

Older adults with dementia or declining cognitive abilities are known to have much  higher risk for abuse and neglect. With the shuttering of adult daycare programs,senior centers, and outpatient programs occurring concomitantly with adult children working from home, the possibility of unbuffered time together may contribute to circumstances leading to greater incidents of abuse.  Add to that the inability or hesitance of younger family members to check in or monitor their elderly family members, and the risk of abuse by third parties also likely increases. 

One cannot discuss elder abuse without exploring both ageism and confirmation bias.  The World Health Organization (WHO) defines ageism as “the stereotyping, prejudice,and discrimination against people on the basis of their age.  A recent systematic review found ageism to be associated with numerous negative health consequences worldwide. The review, which is the most comprehensive survey of ageism, to date, included over 7 million participants.  The participants spanned five continents, and concluded ageism to be pervasive, harmful, and arguably a primary underlying contributing factor in elder abuse. According to the survey, ageism led to significantly worse health outcomes in 95.5% of the studies and 74.0% of the 1,159 ageism-health associations examined. 

The coronavirus pandemic has inspired ageist thoughts and comments given its predilection toward harming older adults. As the consequences of necessary social distancing increase, ageist views will continue to rise to the surface.  We have already witnessed the potentially  tragic and unjust utilitarian conversations regarding “the needs of the many versus the needs of the few.”  Add to this conversation lackluster investigation and enforcement arising from claims of abuse, and a dangerous indifference to the claims, needs, and goals of the elderly, and the pandemic provides a recipe of ingredients making the elderly only more vulnerable and susceptible to abuse.

CMS COVID-19 Guidance Should Please Nursing Homes and Concern Everyone Else

On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19." 

Nursing homes can breathe easier since the Guidance includes no mandatory language directed at operators.  In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases.  The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. 

Unless you are an operator, the Guidance is concerning.  Does the Guidance mean that a nursing home should be able to test everyone before easing visiting restrictions, but can choose not to do so?   

 CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan on page 4 of the Guidance.  The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines.  No  hard numbers for such oversight suggested for states, and of course, as a result no hard numbers are in place for nursing homes.

CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases."   The Memorandum apparently leaves determination of what constitutes a significant outbreak to the states or the nursing homes themselves, as well as application and enforcement of the recommendation 

There is also much missing.  For example,  there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination. There is nothing in the latest CMS guidelines for testing of and segregation of residents transferred from a hospital, and there is nothing that prevents states from compelling institutions to accept transfers from hospitals or other government entities of COVID-19 infected patients (even younger than one might normally find in such institutions), thereby risking spread of the contagion within an institution.  

What is most comforting, is the detail the Memorandum provides, and the depth to which "thinking" regarding COVID-19 transmission has evolved.  It is important to remember that . although disease transmission protocol is not new, COVID-19, and its unique and intense challenges only became known less than five months ago, and, of course, we are still learning new details. 

Skilled Nursing Occupancy Slips as COVID-19 Rages

The following is reprinted from Mcknight's Long-Term Care News:

Occupancy at skilled nursing facilities took a hit following the onset of the coronavirus pandemic after showing signs of stabilization for several quarters, new data from the National Investment Center for Seniors Housing & Care (NIC) reveals. 

The NIC Intra-Quarterly Snapshot released Tuesday found that occupancy for nursing care facilities fell 2.2 percentage points to 84.7% in April, the first full month of the pandemic. In April 2019, stabilized occupancy was 87% for nursing care.

The decline shows the effects the pandemic has had on operators, according to Beth Mace, chief economist and director of outreach for NIC. Several nursing home companies, such as Sabra Healthcare REIT and Omega Healthcare, have reported significant drops in occupancy following COVID-19.

“That decline again happened in April and that’s when the first beginnings of COVID were really starting to impact the markets. The drop that we see in skilled nursing does reflect in occupancy and a change in move-ins, but it also reflects, in the case of skilled nursing, the fact that a lot of elective surgeries were postponed,” Mace told McKnight’s Long-Term Care News. 

“You often see skilled nursing properties work with patients as they come out of hospitals from elective surgeries for rehab. That had an impact on this data, as well. That explains some of the drop, that 220 basis point decline,” she added. It’s tough to predict how long providers may experience this trend in occupancy since that depends on the course of COVID-19, Mace said. 

“I think it’s sort of beyond anyone’s crystal ball,” Mace explained. “It’s largely a function of the coronavirus itself and how quickly we’ll get a vaccine, whether there will be a second wave, whether the flattening of the curve will continue, how much testing [and tracing] we can do, the extent of [personal protective equipment] out there.” 

Mace said financial outlooks for providers will depend on several variables, including the types of reserves they have and the position they had as they went into the pandemic. 

The report is part of a broader mission to create transparency and provide insights into the current conditions, according to Mace. NIC is planning to release additional occupancy data over the next several weeks and months to help assess market conditions as operators continue to work through the public health crisis. 

“The COVID crisis really pushed us at NIC to try to get the data out as fast as we could to try to inform the market of what’s going on,” Mace said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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