Nursing Home Penalties for Noncompliance Expected to Rise

Nursing home operators are on high alert for potential rule changes regarding civil monetary penalties (CMP's) after a lawsuit was filed against federal health agencies Sunday that targets a 2017 rule that relaxed CMPs for providers, this according to an article in McKnight's Long-term Care News.

The AARP Foundation on Tuesday announced the lawsuit filed against the Department of Health and Human Services (DHS) and Centers for Medicare & Medicaid Services (CMS). The litigation was filed on behalf of the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform, which are listed as plaintiffs in the suit. 

The groups are targeting a July 2017 directive from CMS that called on state surveyors to use per instance or per day CMPs for non compliant providers, depending on the timing of the noncompliance in relation to the survey, if residents were harmed or abused, if the facility had good compliance history and whether noncompliance was persistent when imposing a CMP.

The lawsuit alleges the policy change “severely weakened” the Nursing Home Reform Act of 1987 by “allowing nursing facilities to knowingly let deficiencies persist for days, weeks or even months while facing only a per instance CMP.” 

“Because this penalty amounts to a nothing more than the ‘cost of doing business’ or a veritable ‘slap on the wrist,’ CMS has eliminated the incentives for facilities to self-police and take remedial measures at the earliest point possible,” the lawsuit alleges. 

The implications of the lawsuit could mean that providers may face escalated fines if they were out of compliance during the coronavirus public health crisis, warned Wilson Blount, an Alabama based attorney who specializes in regulatory and healthcare law: 

“If the plaintiffs prevail, it is possible CMS could impose CMPs on operators and providers for every day they were out of compliance for COVID-19 infection control practices, as opposed to each instance. This scenario could represent a substantial increase in liability for them.”  

Brendan Williams, lawyer and president and CEO of the New Hampshire Health Care Association, noted that incoming HHS Secretary Xavier Becerra was among those who previously criticized the CMP policy change.

The timeframe for increases, of course, resulting only from litigation is uncertain.  The lawsuit, nonetheless, portends legislative review, and makes policy change more likely. The industry is taking note.  Hopefully, lawmakers will too.  

Trustee Authority to Sell Trust Property to Pay for Settlor’s Long-Term Care Costs

Reversing a lower court, Wyoming’s highest court has ruled that a trustee has authority to sell property in the trust to pay for the settlor’s long-term care even though the trust provided that the property was to be placed in trust for the settlor’s daughter when the settlor died. Jackson v. Montoya (Wyo., No. 2020 WY 116, Sept. 4, 2020).

David Jackson’s parents created a trust and transferred their property to the trust. The trust provided that the trustee had authority to pay the surviving settlor from the trust property, including selling trust property, as necessary to provide for his or her comfort. The trust also provided that on the death of both parents, the property in the trust should be conveyed to a trust for the benefit of Mr. Jackson’s sister, Candyce Montoya, who was authorized to live on the property rent free. Mr. Jackson became the successor trustee of the trust and wanted to sell the property to pay for his father’s long-term care, so he served an eviction notice on Ms. Montoya. Ms. Montoya refused to vacate the property. 

Mr. Jackson sued, seeking a declaratory judgment that the trust was entitled to the property. The trial court interpreted the trust to grant Ms. Montoya a life estate in the property, which prevented Mr. Jackson from selling the property. Mr. Jackson appealed. 

This is an all-too common cause for dispute; does a surviving spouse have the authority to sell property held in a marital trust (or sometimes even a separate trust) that benefits the surviving spouse, where the property is ultimately retained in trust for the benefit of a child?  Typically, the trust is clear and ambiguous, by, for example, reciting an order of intent and authority (for example, "it is my/our intention to provide for each other, and then for the surviving spouse, and then upon the death of both of us to provide for our surviving children, and then for our grandchildren if there is a death of one our children...").  Sometimes, though, a trust is not so clearly crafted, and in this case, ambiguity arose, at least in part, from a specific amendment which the daughter claimed provided a specific and different intention as to specific property for her benefit. 

The Wyoming Supreme Court reversed, holding that Mr. Jackson had authority to sell the property to pay for his father’s long-term care. According to the court, the trust makes clear that the trustee has the right to “sell or deal with any Trust property, in his or her sole discretion, without interference, for the benefit of the surviving settlor’s care, comfort, support, welfare or maintenance, as may be necessary.” The court ruled that when the trust provisions are read as a whole, “it is clear” that Ms. Montoya’s interest “will not vest until the death of the remaining Settlor.” 

Source of original article: "Trustee Has Authority to Sell Property in Trust to Pay for Settlor’s Long-Term Care Costs," Elderlaw Answers (9/21/2120).

Seniors Dying from Isolation Amid Pandemic- One Analysis Suggests Tens of Thousands

Prohibiting visitors to nursing homes has arguably helped limit the spread of COVID-19. But what are the impacts of isolation?  For some the impact has been profound. 

According to a recent Washington Post article, pandemic-related segregation and isolation has killed thousands of Alzheimer’s patients while families watch from afar. According to the Post's research: 

Beyond the staggering U.S. deaths caused directly by the novel coronavirus, more than 134,200 people have died from Alzheimer’s and other forms of dementia since March. That is 13,200 more U.S. deaths caused by dementia than expected, compared with previous years, according to an analysis of federal data....

The consequences are not limited to just deaths from dementia.  Data also shows increased deaths from causes such as hypertension or sepsis, which "are occurring at much higher levels than in the past, experts say, in part because of the pandemic’s indirect effects."  A recent study also demonstrates that the separation and isolation extends beyond just familial separation; all contact with nursing home residents fell by half amid the pandemic.   

Overlooked in America’s war against the coronavirus is a stark reality: isolation and limits on human contact have profound direct and indirect mental and physical health consequences.  For at least one population for which careful government data exists, the consequence is palpable and demonstrative; seniors with dementia are dying not just from the virus but from the very strategy of isolation that is supposed to protect them. 

The effect of social isolation and division are important consideration as states begin to allow visits to nursing home residents.  The article highlights a number of individuals' stories and compares reopening of SNFs in other countries to that of the US.  According to the article:

"countries like the Netherlands have safely reopened their nursing homes without any increase in coronavirus cases by providing ample protective equipment, testing and rigorous protocols."  

Aging in place might provide a more flexible arrangement, but requires serious appreciation and consideration of risks.  

Heartbreaking Study Finds that Contact with Nursing Home Residents Fell by More than Half

Nursing home operators took limiting in-person contact with residents very seriously after the onset of the coronavirus pandemic. Visits of all kinds fell by 53% between March and April, new findings by SeniorLiving.org research revealed.

According to McKnight's Long-term Care News,The Centers for Medicare & Medicaid Services (CMS) issued guidance in mid-March restricting access for all visitor and non-essential healthcare personnel from facilities in an effort to combat and limit the spread of COVID-19.

The findings also showed that between April and June visits rebounded but were still down overall 33% when compared to March. The analysis used de-identified visitor data to nursing homes from 26 states. Researchers noted that because the data is de-identified, total traffic to nursing homes is inclusive of staff, vendors and visitors. 

“While this data does show the significant drop in visitors, it does not quite fully convey that there was almost a 100% decrease in [non-essential] visits that bring great joy to our residents — visits from their family and friends,” Erin Shvetzoff Hennessey, CEO of Health Dimensions Group, told McKnight’s Long-Term Care News. Hennessey explained that non-essential visitors that many facilities stopped included visits from family, beauticians, clergy, entertainment and all non-essential health visits. She noted that “most providers took the guidance very seriously and had even put in place restrictions prior to CMS requirements.”  

“The isolation our residents have felt is heartbreaking, but necessary to keep them safe from a virus that has been so unkind to our residents,” she added. 

Christopher Laxton, executive director of AMDA — The Society of Post-Acute and Long-Term Care Medicine, explained to McKnight's that better visitor insight might have been provided if the data was stratified by type of visitor.  But based on the findings, Laxton said, 

“It appears that the decline in visits in March and April validate nursing homes’ understanding that their patient and resident populations are at extreme and disproportional risk of illness and death from COVID-19 and need to be protected.  The subsequent increase in visits through June is likely multifactorial, including the need to mitigate the devastating effects of long-term social isolation on the nursing home population, among other reasons.” 

McKnight's headline called the findings "Heartbreaking."

Medicaid Applicant Who Did Not Verify Mortgage Balance Is Not Entitled to Benefits

It is vitally important that a Medicaid application be completed properly, and that all required information be provided.  An Ohio appeals court recently held that a Medicaid applicant who did not provide verification of her mortgage balance is not entitled to benefits even though the original mortgage value was higher than the home’s current value. Poindexter v. Ohio Dept. of Job and Family Servs.  (Ohio Ct. App., 5th Dist., No. 2020 CA 00005, August 11, 2020).  In other words, it doesn't matter whether the applicant considers or cam even later establish that the information "might" be considered irrelevant,  burdensome, or non-dispositive, providing complete information is necessary. 

Lucille Poindexter bought a home with a mortgage of $48,023. She entered a nursing home and applied for Medicaid. The value of her home at that time was $36,900. The state requested that Ms. Poindexter verify her current mortgage balance. The request form stated that if Ms. Poindexter was having trouble, she should contact the Medicaid agency for help. The agency contacted her a second time, but Ms. Poindexter did not submit the verification or request assistance. 

The state denied her application for benefits. Ms. Poindexter appealed to court, and the trial court affirmed. Ms. Poindexter appealed, arguing that the evidence showed that she had a mortgage of $48,023, while the house’s value was only $36,900, so her home should not be a countable resource. She also argued that the court improperly placed the burden on her to provide evidence of the mortgage, rather than placing the burden on the Medicaid agency. 

The Ohio Court of Appeals, Fifth District, affirmed, holding that the state properly denied benefits. According to the court, Ms. Poindexter presented no evidence “demonstrating what the balance of the mortgage was as of the time of the application, and thus the agency could not determine the value of the property as of the time of her request for Medicaid assistance.” The court also noted that Ms. Poindexter had the ability to request assistance in obtaining the information, but she did not do that. 

Source: Elderlaw Answers (8/27/20)