Trump Administration Initiative Helps States with More and Faster COVID-19 Testing in Nursing Homes

Nursing homes with three or more COVID-19 cases will be the first to receive on-site diagnostic test equipment from federal health agencies, starting in regions where infections are spiking.

The news was announced Wednesday by the Centers for Medicare & Medicaid Services (CMS), a day after Administrator Seema Verma revealed a new federal plan to deploy rapid point-of-care COVID-19 testing capabilities to eldercare facilities nationwide.

In this week’s rollout, federal agencies will prioritize about 2,000 facilities in hard-hit locations such as Florida, Arizona and Texas. Each approved facility will receive one diagnostic testing instrument and associated tests. Once equipment is distributed, operators can procure additional tests directly from the manufacturers, health officials told nursing homes in a conference call last week, according to McKnight's Long-term Care News.

According to a statement released by Verma, 

The goal is to support on-site infection control and prevention through universal testing. It gives nursing homes the ability to swiftly identify residents that need to be isolated and mitigate the spread of the virus. As one more tool in the toolbox, it represents an important step toward the long-awaited reunion of residents with their loved ones.

To take part, nursing homes must have the capability to test residents and staff on a weekly basis or in accordance with state and local health department guidance, according to the Department of Health and Human Services (DHS), which is helping to distribute the equipment. Visitor testing is also possible “if appropriate for that facility,” the agency added.

The equipment, including the Quidel Sofia and Sofia 2 instruments and BD Veritor Plus Systems, uses antigen tests that can quickly detect fragments of viral proteins in nasal cavity swab samples, providing results in minutes. 

While point-of-care tests may be “slightly more likely” to have a false negative result than laboratory tests, “these are the best, most cost-effective tests we have on the market right now,” said Adm. Brett Giroir, Assistant Secretary of the DHS during the Wednesday call.

“We think this is going to be a turning point in this fight against the coronavirus and keeping our residents safe,” CMS’s Verma concluded.

The new federal initiative was announced after months of lobbying for better testing access by the eldercare industry. Now some advocates have questions. Katie Smith Sloan, president and CEO of LeadingAge, has called for more information about staff training, access to ongoing test supplies, and test reliability for operators’ planning purposes. 

According to CMS, there are more than 200,000 confirmed or suspected cases of COVID-19 and more than 35,000 COVID-19 deaths among nursing home residents as of July 9, 2020. Additionally, the Centers for Disease Control and Prevention (CDC)  recommends that nursing homes perform baseline testing of all residents and staff, followed by regular screening and surveillance through routine testing to detect potential outbreak situations early and reduce morbidity and mortality.  

Trump Expected to Issue Executive Order Reducing Reliance on Foreign Prescription Drugs, PPE

 According to the The Senior Citizens League (TSCL) Weekly Update for Week Ending July 11, 2020,  White House Chief of Staff Mark Meadows announced that President Trump would soon be signing three executive orders regarding prescription drug prices.  While he did not provide any further information, the Washington Post published an article about the likely subject matter of at least one the orders.

It is anticipated that one of the orders will be to shift drug and medical production to this country by suddenly cutting off federal agencies from those offshore supply chains.  The order is expected to apply to government programs and agencies that directly purchase drugs and medical supplies, according to lobbyists and industry watchers. They may include the Department of Veterans Affairs, the Strategic National Stockpile, and the Federal Bureau of Prisons. 

The order would broaden existing federal requirements for government agencies to prioritize buying supplies for medicines deemed “essential” from U.S. manufacturers, rather than companies in China or elsewhere around the world. According to the Post, labs struggled to ramp up coronavirus testing, and hospitals and nursing homes ran short of personal protective equipment over the spring. These failures hampered the national and state responses to the pandemic, leaving the United States with far more infections and deaths than any other country. Even now, shortages of protective medical gear are looming as outbreaks grow in the South. One big reason is because these supplies often come from other countries, which were also dealing with outbreaks. 

The nation’s pharmaceutical industry has pushed back against the potential order, arguing that the United States should not shut itself off from a global supply chain. There is concern that it could make it even harder to obtain supplies critical to combating the pandemic, such as personal protective equipment, testing supplies and even medications to treat coronavirus patients.

“Turning our backs on trading partners during a crisis could damage our relationships long after this pandemic ends,” the Pharmaceutical Research and Manufacturers of America (PhARMA) and dozens of other business and trade groups wrote in a letter to the administration.

Other critics say that revising the government’s purchasing rules will not provide a quick solution to the supply shortages of the current pandemic. “Making Buy American provisions tighter during the current crisis would likely do more harm than good,” according to William Reinsch and Jack Caporal of the Center for Strategic and International Studies.

Eighty percent of the nation’s active pharmaceutical ingredients come from overseas — and China is its No. 2 supplier, behind only Canada.

When it comes to generic drugs, a “substantial portion” of U.S. imports come either directly from China or third countries such as India, which use active ingredients sourced from China.

Moreover, U.S. dependence on China for drugs and drug products is growing. Its imports of Chinese medical equipment increased 78 percent between 2010 and 2018.

Court Protects an Estate Sued By An Annuity Company For Over-payment: Companies Should Know When Their Customers Die

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An annuity company sued a customer’s estate for not reporting the death of his wife, which resulted in him receiving larger monthly payments after her death than he was entitled to under the contract.  The customer died in 2013, and the annuity company discovered the over-payments in 2014. In 2016, the annuity company filed suit against the customer’s estate for the over-payments. Both parties filed summary judgment motions, and the trial court entered judgment for the annuity company. The estate appealed.  

The court of appeals reversed and rendered judgment for the estate. The court first addressed the annuity company’s breach of contract claim. The court held that the contract did not expressly or impliedly require the surviving spouse to report the death of the first spouse. The court held:

"In sum, the annuity contract, taken as a whole, does not evidence an intent to impose an implied obligation on Harold to notify Principal of Emily’s death or an implied obligation to return money Harold received in excess of the stated contract amount. Moreover, it is undisputed that this was Principal’s contract. “In Texas, a writing is generally construed most strictly against its author and in such a manner as to reach a reasonable result consistent with the apparent intent of the parties.” Principal, a sophisticated commercial enterprise, did not include express provisions requiring Harold to notify Principal of Emily’s death or to return money received in excess of the stated contract amount. The annuity contract, as written, does not evidence an intent to imply these obligations. Because we conclude the annuity contract, taken as a whole, does not support imposition of an implied obligation on Harold to notify Principal of Emily’s death or an implied obligation to return money Harold received in excess of the stated contract amount, Principal cannot show Harold breached the annuity contract."

The court then reviewed the annuity company’s "money-had-and-received" claim. The court described the claim: 

“Money had and received is an equitable doctrine designed to prevent unjust enrichment. To prevail on a claim for money had and received, the plaintiff need only prove that the defendant holds money which in equity and good conscience belongs to the plaintiff.” 

The court held that the claim was barred by the two-year statute of limitations  because the annuity company did not file its claim within two years of discovering the over-payments.

Finally, the court rejected the annuity company’s fraud by nondisclosure claim. According to the courty, in order to establish fraud by non-disclosure:

“Principal must prove: (1) Harold deliberately failed to disclose material facts; (2) Harold had a duty to disclose such facts to Principal; (3) Principal was ignorant of the facts and did not have an equal opportunity to discover them; (4) by failing to disclose the facts, Harold intended to induce Principal to act or refrain from acting; and (5) Principal relied on the non-disclosure, which resulted in injury.” 

The court held that the annuity company had an equal opportunity to discover its customer’s death:

Principal had an equal opportunity to discover Emily’s death. Principal had internal procedures in place to discover this very type of information. Angela Essick, Principal’s corporate representative, testified that between 2001 and the present, Principal utilized a third-party company and the Social Security Master Index to provide it with a list of names and social security numbers of the deceased on a quarterly basis. Principal would compare these names and social security numbers with those of its annuitants. Principal failed to discover Emily’s death through these channels because it never obtained Emily’s social security number. Principal cannot rely on its internal oversight to claim it did not have an equal opportunity to discover Emily’s death.

Accordingly, the court dismissed all of the annuity company’s claims and rendered judgment for the estate of the customer.

The case has serious implications  for annuity companies specifically, to be sure, but generally for any company involved in the financial services industry.  The case also has serious implications for agents, as they might be expected by their contacting principals to protect them from loss by reporting timely the death of customers.  Agents should be cognizant of changes to agreements and contracts, and should consider these carefully in establishing business practices.

For the consumer, the decision is welcome, but should not be relied upon in expecting protection from continuing to collect and use funds they are not legally entitled to keep; the company in this case may have recovered from the estate had it acted more quickly in filing its claim.

The decision in the case is at first glance surprising, but as is often the case with surprising results, heavily dependent on a set of facts that are unlikely to occur.  Administrators, Executors, and Trustees should follow counsel's guidance regarding treatment of estate funds, and notification of third parties.   

The case is In re Estate of Scott, No. 04-19-00592-CV, 2020 Tex. App. LEXIS 4059 (Tex. App.—San Antonio May 27, 2020, no pet. history).

CMA Brief Outlines Medicare Failure to Provide Home Health Care and Support Family Caregivers

Among the greatest achievements of the Trump Administration is embracing aging in place and home care for seniors under Medicare.  The federal bureaucracy has likewise, taken steps toward Aging in Place and home care for seniors, and these steps might be considered bold if one firmly believes that the first step in solving a problem is acknowledging its existence. The Center for Medicare Advocacy (CMA) recently released an issue brief on Medicare and Family Caregivers that makes acknowledgment of the problem, and suggested solutions easier. 

The Brief "examines the role Medicare currently plays, and could play, in assisting beneficiaries and their family caregivers,"  covers Medicare law, the need for coverage, issues with receiving Medicare home health care services, problems with access to coverage, the limited number of aides, and more. The Brief also discusses Medicare Advantage and in-home services.

The Brief acknowledges that Medicare has a problem:

"As the population ages, and lives longer with chronic conditions, the need for family caregiving, and support for caregivers, is increasing. Concurrently, however, access to Medicare-covered home health aide care continues to decline. This is often true even for individuals who meet the Medicare law’s qualifying criteria. Unfortunately, Medicare beneficiaries are often given inaccurate information regarding Medicare home health coverage in general, and home health aides in particular. Sometimes they are told Medicare simply does not cover home health aides. Harmful misinformation abounds. Further compounding this problem, Medicare does not provide coverage for family caregivers. Coverage is only available for personal care through home health aides, provided through a Medicare-certified home health agency; the individual must have an authorized practitioner’s order, be homebound, and need nursing or physical or speech therapy (citations omitted, emphasis added)."

The Brief then outlines the daunting financial burdens facing Medicare recipients who desire to Age in Place or receive care in-home:

Privately paying for in-home care/aides can cost around $3,000 per month, unaffordable for most Medicare beneficiaries. Basic facts about the Medicare population tell us why. Half of all Medicare beneficiaries live on annual incomes less than $29,650; 25% live on annual incomes below 2 $17,000; 50% have savings less than $73,800; 10% have no saving or are in debt. Data also shows that beneficiaries of advanced age and younger beneficiaries with disabilities have yet lower incomes: Among people ages 65 and older, median per capita income declined steadily with age, dropping from $35,200 between ages 65 to 74 to $22,750 at ages 85 and older. Across the entire Medicare population, median per capita income was considerably lower for beneficiaries under age 65 with permanent disabilities ($19,550) than among seniors. In 2018, about one in seven (15%) of Medicare beneficiaries were under age 65 and generally eligible for Medicare due to a long-term disability. Median income for individuals ages 65 and older was $31,450 per person in 2019, while one in four beneficiaries ages 65 and older had incomes below $18,150. Thus, out-of-pocket health costs, including for in-home care, often pose an access barrier, particularly for beneficiaries in fair or poor health. When Medicare coverage is unavailable or unfairly denied, beneficiaries are often unable to afford the home care they need. This places additional, avoidable stress on the beneficiary, family, and family caregivers. Unable to live safely in the community, it may also lead to preventable health complications, injuries, hospitalizations, and nursing home admissions (citations omitted, emphasis added).

CMA, therefore, made a series of recommendations: 

"1. Ensure the scope of current allowable home health benefits, generally, and home health aides, specifically, are actually provided. Simply put, ensure that current law is followed;

2. Create a new stand-alone home health aide benefit that would provide coverage without the current skilled care or homebound requirements, using Medicare’s existing infrastructure as the vehicle for the new coverage; and

3. Identify other opportunities for further exploration within and without the Medicare program, including additional Medicare revisions, demonstrations, and initiatives overseen by the Center for Medicare and Medicaid Innovation (CMMI)."

After providing some actual examples, the Brief provides insights into other additions to Medicare that would provide more services to beneficiaries.  The conclusion  provides that:

 "Medicare home health coverage is not being implemented to the full extent of the law. If it were, countless beneficiaries and families would be better off. Nonetheless, at best, the current Medicare benefit leaves far too many patients and caregivers behind. In order to provide quality home-based care for individuals, and support for their caregivers, significant changes are needed to the Medicare program and the broader health insurance system." 

The Brief is part of collaborative work to advance the RAISE Family Caregivers Act passed in 2018.  The RAISE Act directs the Department of Health and Human Services to develop and maintain a national family caregiver strategy that identifies actions and support for family caregivers in the United States. CMA's issue brief explores the role Medicare does, and could, play in supporting older and disabled beneficiaries and their caregivers. The issue brief was written with support from The John A. Hartford Foundation.

Hospice Provides Comfort for Veterans and Their Families

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The following is a reprint of an excellent article from Veterans Family Matters and VAGA News:

At the end of life, every patient is unique. When a patient with an advanced illness is ready to start the conversation, hospice care focuses on improving quality of life. When that patient is a veteran, providing appropriate care requires insight into the challenges they face throughout life, not only at its end.

In general, hospice patients are estimated by their physicians to have six months or less to live. But receiving hospice care doesn't mean "giving up" or compromising comfort and dignity. As part of the Medicare Part A hospice benefit, hospice patients are entitled to whatever their terminal diagnosis requires. This includes medications, home medical equipment, supplies, supportive services and care from a team of experts.

The interdisciplinary hospice team-nurse, hospice aide, social worker, physician, chaplain, bereavement specialist and volunteers-provides clinical, spiritual and psychosocial care to the patient and their family wherever they call home. 

Unique Care for Veterans

Veterans face experiences throughout their military careers that test the limits of the human body and mind. The repercussions of these experiences may linger long after a veteran's service ends, and their needs at the end of life can be severe and varied.

Hospice experts are trained to support these difficult circumstances, including financial and benefit concerns, post-traumatic stress disorder, unresolved issues associated with military service, depression and suicide. Veteran liaisons ensure the patients have access to every benefit to which they're entitled.

Some hospice providers also participate in We Honor Veterans, a program developed by the National Hospice and Palliative Care Organization and the VA to improve care for vets in hospice. Veterans are shown how much their service is valued through special events and activities, including trips to the Washington, DC, war memorials via the Honor Flight Network®.

 For patients with advanced illness, hospice helps make the best of those final months, weeks and days. Hospice patients enjoy being home among loved ones, free of medical expenses, and in the care of a team dedicated to their comfort and dignity.

Larry Robert, Bereavement Services Manager/Veteran Liaison

VITAS Healthcare of Atlanta

www.vitas.com