New York Repeals Health Care System Protection from COVID-19 Liability

New York Gov. Andrew Cuomo recently signed a bill repealing a state law protecting health care facilities and professionals from COVID-19 related lawsuits.

The Emergency or Disaster Treatment Protection Act was enacted in April 2020 at the inception of the COVID-19 pandemic. At least fifteen states passed some form of liability protection for health care workers and institutions in the wake of the pandemic.  New York lawmakers voted nearly unanimously (149-1) last month to repeal the portion of the law that offered protection from both civil and criminal liability.  These laws remain controversial.

Nursing homes and their staff are among those affected by the repeal, which went into immediate  effect upon signing, or April 6, 2021, per Law360. 

Nursing homes will be vulnerable to COVID-19 related lawsuits on a going forward basis, however, the repeal is not retroactive, leaving in place protections for incidents that occurred during the period that the law was in effect.

Nursing home and elder care advocates have celebrated the repeal as a restoration of the rights that protect nursing home residents from abuse or neglect. 

On the other hand, the Greater New York Hospital Association and the Greater New York Health Care Facilities Association have strongly opposed the repeal, according to ABC News.

This action may trigger a trend in states repealing COVID-19 legal protections for health care workers and/or institutions, but given the circumstances unique to New York and Governor Cuomo, the action may prove to be an outlier.

Beware Direct Transfer Designations (TODs and PODs)- Part III- Transfer on Death Deed for Real Estate Results in Loss of Insurance Coverage and Impairment of Asset Value

In Dawn Strope-Robinson v. State Farm Fire and Casualty, Dawn became the owner of a home owned by her deceased uncle pursuant to a transfer on death deed. Several days after her uncle’s death, her uncle’s ex-wife intentionally started the house on fire. The resulting damage was substantial.

Dawn filed a claim against her uncle's insurance company.  The fire and resulting damage occurred prior to Dawn even having the opportunity to file an affidavit confirming her father's death, and so she had not yet obtained insurance for the property in her name. 

The insurance company denied the claim related to the real property on the basis that the policy only insured the uncle as an insured, and not any subsequent owner.  Dawn sued.  

The Eighth Circuit Court ruled in favor of the insurance company on the basis that transfer to Dawn occurred immediately upon death, Dawn was not covered under her uncle’s policy and her uncle’s estate had no insurable interest in the property.

This case has a complex procedural history and Dawn made a number of equitable and statutory arguments supporting her claim for insurance under her uncle's policy, all of which were rejected by the court.  The case was also decided applying Nebraska law. 

Of course, standard policies insure, for at least a period of time, fiduciaries of the estate of a deceased insured.  The reason that these provisions did not apply in the Strope-Robinson case is that the real property was not an asset of the probate estate, and the court ruled specifically that the uncle's estate had no insurable interest in the property. In other words, the successful effort to avoid probate meant that the uncle's insurance terminated immediately upon his death. 

   

The case should give pause to the reflexive use of a transfer on death deed or beneficiary affidavit as an inexpensive estate planning tool. 

Ohio and Missouri law differs.  In Ohio, though, the holding in Strope-Robinson appears consistent with the result predicted by the Walker case previously discussed in a separate article on this blog.  For more information see:

• Beware Direct Transfer Designations (TODs and PODs)- Part II: Ohio Transfer of Death Designation Affidavit (TODDA) for Real Estate- Lapse of Insurance Coverage.

Of course, Direct Transfer Designations is also a separate subject of the first article in this series:

• Beware Direct Transfer Designations (TODs and PODs).

Thanks to Attorney Mary Vandenack for contributing commentary on the case to Steve Leimberg's Estate Planning Newsletter, which inspired this article.   

Exercise May Slow Cognitive Decline for Some Parkinson's Patients

Parkinson's disease can and often does cause of cognitive impairment. Memory and cognitive  impairment are among the most common nonmotor symptoms of the disease. A new study shows that exercise may help slow cognitive decline in some Parkinson's patients.

Research has also indicated that those with Parkinson's disease who have the gene variant apolipoprotein E e4 or APOE e4, may experience cognitive decline at an earlier, and quicker rate than those without the variant. Also, APOE e4 has been identified as a "genetic risk factor for Alzheimer's disease." 

The new study focused on whether exercise could slow down the cognitive decline for people that have the APOE e4 variant.  According to Jin-Sun Jun, M.D., of Hallym University in Seoul, Korea,  “[p]roblems with thinking skills and memory can have a negative impact on people’s quality of life and ability to function, so it’s exciting that increasing physical activity could have the potential to delay or prevent cognitive decline.”

Jun also stated that there will need to be more research done in order to confirm the findings, but the results of the research suggests that "interventions that target physical activity" play a role in delaying cognitive decline in people with early Parkinson's who have the APOE e4 gene variant.

Source: "Exercise May Help Slow Cognitive Decline In Some People with Parkinson's Disease," American Academy of Neurology, March 31, 2021. 

NYT: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."

The headline of a  recent New York Times article posed succinctly the challenge nursing home rating systems present to an unwary public: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."  The subtitle to the article indicts the industry: "Nursing homes have manipulated the influential star system in ways that have masked deep problems — and left them unprepared for Covid-19."  The role of government, from benign neglect, incompetence, and/or complicity, is also discussed in the article.

The article is rich with examples of institutions with fundamental problems and flaws that nonetheless attain "high marks" and good ratings, masking dangers and risks to unwary consumers.  For readers of this blog, this reality is not revelation.  The case for aging in place could not be more profound.

The article is largely reprinted below [tables, pictures, and graphics omitted]:  

Transfer of Home to Caretaker Child Effective Even Where Child Works Outside Home

Medicaid rules permit a senior to transfer a home to a child that has establishes residence in the home and provides care necessary to age in place for a two year period.  But the question arises, must the caretaker child devote all of his or her time to the care?  While a rational reading of the statute would suggest no requirement of full time care, and no restriction against outside work,  controversy can arise, and did in a recent New Jersey case.  

Fortunately, New Jersey ultimately interpreted the rule rationally.  The New Jersey appeals court recently held  that a Medicaid applicant’s transfer of her interest in her house to her son qualifies for the caretaker child exemption even though the son worked outside the home and hired aides to help care for his mother. See, A.M. v. Monmouth County Board of Social Services (N.J. Super. Ct., App. Div., No. A-5105-18, March 11, 2021).  Unfortunately, the result was not easy, and was attained only after a protracted legal battle.

The son lived with his mother, and worked as a teacher. Mom transferred two-thirds of her interest in her home to her son and her daughter while retaining the remaining one-third interest. When mom was diagnosed with Alzheimer’s disease, the son arranged for caregivers to assist him with providing care for his mom while he was at work and paid the aides from mom's assets.  Mom transferred her one-third interest in her house to him. Mom eventually entered a nursing home and applied for Medicaid. A doctor’s report stated that without the son's care, the mom would have entered the nursing home sooner. The Medicaid agency, nonetheless,  imposed a penalty period based on mom’s transfer of her one-third interest to A.M.

The son requested a hearing, arguing that the transfer was exempt under the caretaker child exemption. An administrative law judge (ALJ) found that the care the son provided his mother went beyond the personal support a child is expected to provide and approved the exemption. The Medicaid agency reversed the ALJ’s decision, however, concluding that because the son had aides provide care for his mother and paid for the care out of her funds, the transfer was not exempt.  

Understand the hypocrisy of the State's position here.  The exemption is specifically designed to encourage  a child to take care of their parents by permitting transfer of the home to them for doing so, where that care prevented institutional care.  The State is essentially argues that if the child has a life beyond caregiving for the parent, and manages care for the mother through other caregiver's in order to ensure the highest continuity and quality of care, the child cannot be rewarded for the child's service. The State's position is essentially that a child can receive the benefit of the exemption only if the child devotes full time to caregiving, and more, refuses to engage paid assistance, potentially diminishing the quality of care provided.  The State would bristle at the suggestion that its position encourages compromise to quality and safety, but is that not precisely the State's position?   

Understandably, the son appealed.  he New Jersey Superior Court, Appellate Division, reversed, holding that the transfer is exempt under the caretaker child exemption, ruling that there is nothing in the law preventing a caretaker child from working outside of the home or hiring aides to assist with caregiving. The court determined that there was ample evidence that before and after work, the son provided care beyond that normally expected of a child. According to the court, the “intent of the regulation – to encourage children to make the necessary arrangements to care for a parent in their home to avoid the public expense of institutionalization – would not be furthered by a requirement that the child caregiver work only a limited number of hours outside the home or earn no more than a particular income.”

The case represents an excellent result for aging in place proponents that is only diminished by the  lengthy legal battle the son had to endure to attain the result.