HAVE A BLESSED MEMORIAL DAY

Originally named Decoration Day, Memorial Day is a call to remember those servicemen and women who gave their lives in service of the United States of America. The holiday was originally conceived as a solemn day of honor for Civil War dead, proclaimed on May 5, 1868 by national commander of the Grand Army of the Republic General John Logan. The date was chosen specifically because it did not fall on the anniversary of any specific battle. In his proclamation on Decoration Day, Logan stated, “The 30th of May, 1868, is designated for the purpose of strewing with flowers, or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village and hamlet churchyard in the land.”

While there is some confusion as to when and where Memorial Day actually began, New York was the first state to recognize the holiday in 1873, with all northern states following by 1890. Prior to World War I, Decoration Day, or Memorial Day, as it came to be called, was primarily a “northern state” holiday, with southern states honoring their war dead on different days. At the close of World War I, the holiday transformed from a day to honor Civil War dead to a day to honor all Americans who died fighting in any war.  The National Holiday Act of 1971 established our current Memorial Day, falling on the last Monday in May. 

Additionally, in December of 2000 The “National Moment of Remembrance” resolution was passed. This resolution asks that at 3 pm local time all Americans “voluntarily and informally observe in their own way a Moment of Remembrance and respect, pausing from whatever they are doing for a moment of silence or listening to Taps.”

In 1915, inspired by the poem “In Flanders Fields,” Moina Michael replied with her own poem:

        We cherish too, the Poppy red 

That grows on fields where valor led,

It seems to signal to the skies

That blood of heroes never dies.

Michael then conceived of an idea to wear red poppies on Memorial day in honor of those who died serving the nation during war. She was the first to wear one, and sold poppies to her friends and co-workers with the money going to benefit servicemen in need. See more on the significance of the Red Poppy.

Later Madam Guerin from France was visiting the United States and learned of this new custom started by Ms. Michael. When she returned to France she made artificial red poppies to raise money for war orphaned children and widowed women. This tradition spread to other countries. In 1921, the Franco-American Children’s League sold poppies nationally to benefit war orphans of France and Belgium. The League disbanded a year later and Madam Guerin approached the VFW for help.

Shortly before Memorial Day in 1922 the VFW became the first veterans’ organization to nationally sell poppies. Two years later their “Buddy” Poppy program was selling artificial poppies made by disabled veterans. In 1948 the US Post Office honored Ms. Michael for her role in founding the National Poppy movement by issuing a red 3 cent postage stamp with her likeness on it.

Our staff, family, and friends, salute the men and women who gave their all for us.  

Have a , safe and enjoyable Memorial Day commemoration.

CMS Requires LTC Providers Report Weekly COVID Vaccine Data; Data Made Public

Long-term care facilities are required to report weekly data on COVID-19 vaccination status for both residents and staff under a new interim final rule, putting more pressure on providers to remain transparent with their efforts. 

The Centers for Medicare & Medicaid Services (CMS) announced the new regulation, which apply to long-term care facilities and intermediate care facilities for individuals with intellectual disabilities.  Enforcement begins June 14. 

As data becomes available, CMS will post facility-specific vaccination status information so that it can be seen openly by the public on CMS’ COVID-19 Nursing Home Data website, the agency said.

CMS added that the new mandate is designed to assist in monitoring uptake among residents and staff, and aid in identifying facilities that may be in need of additional resources to respond to the COVID-19 pandemic.

LTC facilities are already required to report COVID-19 testing, case and mortality data to the National Healthcare Safety Network for residents and staff, but they have not been required to report vaccination data.

“These new requirements reinforce CMS’ commitment of ensuring equitable vaccine access for Medicare and Medicaid beneficiaries,” Lee Fleisher, MD, CMS’ Chief Medical Officer and director of the Center for Clinical Standards and Quality, said in a statement. 

“Today’s announcement directly aids nursing home residents and people with intellectual or developmental disabilities who have been disproportionately affected by COVID-19. Our goal is to increase COVID-19 vaccine confidence and acceptance among these individuals and the staff who serve them,” he added. 

Some states had already been collecting and monitoring such data, and Maryland last week said it would require its providers to feed information to a public-facing dashboard.

A growing movement to track

CMS had hinted that a national vaccination reporting requirement could be in the pipeline for providers. The agency put forward a new SNF Quality Reporting Program measure as part of its Skilled Nursing Facility Prospective Payment System proposal for fiscal year 2022. 

The proposed rule would have require skilled nursing facilities to report staff COVID-19 vaccination rates to the Centers for Disease Control and Prevention National Healthcare Safety Network starting Oct. 1. Currently, staff vaccination reporting is voluntary.

The agency on Tuesday added that it’s also seeking comment on expanding the reporting policy to other congregate care settings, such as assisted living facilities, psychiatric residential treatment facilities and group homes.

Regulators said they are specifically interested in comments on “potential barriers facilities may face in meeting the requirements, such as staffing issues or characteristics of the resident or client population, and potential unintended consequences.”

The rule also requires providers to report the use of therapeutics administered to residents for treatment of COVID-19. The agency said reporting their use will help government officials and other stakeholders “monitor the prevalence of these treatments, their impact on reducing the effect of COVID-19 on nursing home residents, and support allocation efforts to ensure that nursing homes have access to supplies to meet their needs.”

Tuesday’s rule would have been more expansive, CMS added, but logistical concerns kept the range limited.

“Because we are not able to guarantee sufficient availability of single dose COVID-19 vaccines at this time, or in the near future, to meet the potential demands of facilities with relatively short stays, we are focusing on facilities that have longer term relationships with patients and are thus also able to administer all doses of and track multi-dose vaccines,” they said in a summary of the interim final rule, scheduled to be published in the Federal Register on Thursday.

Source: D. Brown, "BREAKING: New CMS rule requires LTC providers to report weekly COVID vaccine data, which will be made public," McKnight's Long-term Care News (May 11, 2021) (last accessed 5/11/2021).

Beneficiaries of Trust Can Contest Trust Protector’s Amendment On Grounds of Undue Influence

A "trust protector" is a person or institution appointed by a settlor (a person creating a trust) to protect the trust, or more directly, to protect a vulnerable beneficiary of the trust.  The original idea behind the protector was to appoint somebody who could oversee the Trustee, and, if necessary, terminate the Trustee for misconduct without resorting to a court process.

This planning device is increasingly common, and, as you might expect, takes on different characteristics in design and implementation within different trusts.  Originally crafted, the only power conferred to a trust protector was discretion to terminate a trustee. As design of trusts evolved, protectors were conferred additional powers, such as the power to appoint the successor Trustee if one is fired, or even, sometimes, to amend a trust.

With the rise in the number of trust protectors appointed by trust instruments, it is inevitable that protectors will be embroiled in legal disputes, notwithstanding that the intention of the planning device is to reduce such disputes, and more, to avoid resort to court for a remedy for misconduct, particularly, unresponsive, slow, or distracted trustees.  Of course, the more authority conferred to a trust protector, the more likely any individual  protector is likely to be embroiled in a dispute.  That is what happened to a trust protector in a recent case in Arizona.  

Austin Bates suffered from Parkinson’s disease and was in the process of getting a divorce when he hired an attorney to create a trust for him. The trust provided distributions to his ex-wife, daughters, and his caretaker. Mr. Bates selected a professional trustee and designated his attorney as trust protector. The trust protector could, according to the terms of the trust, alter or amend the trust consistent with Mr. Bates’s wishes. Once his divorce was final, Mr. Bates married his caretaker, Lindi Bates. After meeting with Mr. Bates and his new wife, the trust protector amended the trust adding a "no contest" clause (legally referred to as an in terrorem clause), which invalidated the interests of anyone who contested the trust, and eliminating the distribution to Mr. Bates’s ex-wife, providing instead income to his new wife for her life and making Mr. Bates’s daughters the remainder beneficiaries after the death of the new wife.

Mr. Bates’s daughters sued to invalidate the trust amendment on the grounds that the amendment was procured through undue influence. The new wife moved to dismiss the undue influence claim, arguing that the daughters alleged she influenced Mr. Bates, but that Mr. Bates had no ability to amend the trust. The court dismissed the undue influence claim and enforced the in terrorem clause, disinheriting the daughters as beneficiaries. The daughters appealed.

The Arizona Court of Appeals reversed, holding that the the lower court improperly dismissed the undue influence claim because the new wife could be found to have exercised undue influence over Mr. Bates, and  although Mr. Bates didn’t have authority to amend the trust, the trust protector was duty bound to follow Mr. Bates’s wishes.  Bates v. Bates, (Az. Ct. App., Div. 1, No. CA-CV 19-0845, May 11, 2021). According to the court, state law “does not require a claimant to allege the defendant exerted undue influence directly over the person with final authority to amend the trust; instead, it broadly states that a trust amendment is void if ‘its creation was induced’ by undue influence.”  Bates, at pp. 7-8.

The Bates case is instructive regarding how the court treated the undue influence claim. More, though, the case is instructive regarding the court's treatment of the trust protector given that protector's involvement as, essentially, an agent of the settlor in the case.  It is possible that better design and drafting might have avoided the claim, but there is little question that the broad grant of authority conferred to the protector, and the exercise of that authority, caused the protector to become embroiled in an all-too-common family squabble. 

Note: Photo 140723192 / Protection © Andrii Yalanskyi | Dreamstime.com

Five Trends Driving Potential of Wearables for Older Adults

Laurie Orlov has identified five trends driving the potential of wearable technology for older adults.  Orlov is a tech industry veteran, writer, speaker, elder care advocate, and founder of Aging and Health Technology Watch (an excellent blog to which every reader should subscribe). 

Wearable technology is nothing new, perhaps, but application to and use by the older community has always been a question.  From activity trackers that gained popularity in the past decade, to introduction of smart watches by Apple in 2015, the adoption of wearables by older adults has continued to grow. New products, like the Oura Ring, the Apple Watch Series 6 and the Samsung Galaxy Watch 3 Active, or the Bose SoundControl hearing aid, continue to fuel interest in their potential for older adults.

The five trends she identified are:  

• Forecasts of purchases are rising. The analyst firm Gartner has predicted, in its January 2021 forecast, that worldwide end-user spending on wearable devices will reach $81.5 billion this year, representing an 18.1% increase over 2020, when spending reached $69 billion. The growth is being attributed to increased remote working and a higher interest in health monitoring.  According to Orlov, IDC forecast growth in hearables (397 million units) and smart watch shipments (156 million units) out to 2024, and an Apple Watch insider told her that 3-5 million Apple watches alone have been purchased by adults age 65+.

• Health-tracking devices and usage grew in 2020. According to Rock Health, 66% of those who started using a wearable did so to manage a diagnosed health condition.  And more than 51% of wearables owners use the device to manage a diagnosed health condition.  Specific health attributes included weight, heart rate, blood pressure. It should be noted data was collected prior to the 2020 Covid-19 lockdowns.

• Views on the patient's role in their medical are changing.  In 2013, Leroy Hood published a paper, “Systems Biology and P4 Medicine: Past, Present, and Future” that introduced the idea that patients had a role in their own care, saying that medicine should be ‘predictive, preventive, personalized, and participatory.” That concept became a basis for the growing interest in the role of wearables as capable of assisting in all four attributes.  The public is taking a greater role, in part due to availability of devices that make them active participants, and in part as they discern their own specific goal and objectives regarding health care.

• Consumers show preferences about what to track.  Even before the Covid-19 pandemic, as of January, 2020, the Guidance for Wearable Health Solutions white paper noted that users of wearables were showing preferences about what to track, expressing, for example, interest in tracking blood pressure and heart health. 

• Growing consumer interest in actually utilizing wearable health solution information. Because individuals want to participate in their own health, they not only want to track, but also to share data with their doctor to help with a more accurate diagnosis. The Consumer Technology Association has been surveying consumers – and noted that even in February of 2019, 58% of consumers were willing to share health data with their doctor to gain a more accurate diagnosis and treatment.

Technology can be a game-changer for an older person's ability to age in place,  whether at home, in a community, with friends or family, or even in an institution.  Technology is persistent, does not become weary or burdened emotionally, physically, or mentally, and particularly where incorporated with robust human contact, interaction, oversight, and review, can empower choices that  simply are not otherwise possible.   

Single Rooms Might Have Prevented 31% of Long-Term Care COVID-19 Deaths

A study spanning several countries found that the infrastructure of long-term care has to change drastically to protect residents from health threats like COVID-19, with simulations finding that 31% of coronavirus deaths in Ontario, Canada, would have been prevented if all residents had had single-occupancy rooms. 

“Community outbreaks and lack of personal protective equipment were the primary drivers of outbreak occurrence in long-term care homes, and the built environment was the major determinant of outbreak severity,” George Heckman, a professor at the University of Waterloo in Ontario, Canada, said in a statement  on the study, which was published in the Journal of the American Medical Directors Association.

The study drew from an international virtual town hall held in fall of last year and hosted by Provincial Geriatrics Leadership Ontario (PGLO). The gathering focused on three themes: updating the built long-term care environment, public health versus individual health, and staffing.

Outbreaks in Ontario during the first wave of COVID-9 “were not uniformly distributed, with 86% of infections occurring in 10% of homes,” according to the study. The primary determinant of nursing home outbreaks in the Canadian province — as in the U.S. — was the extent of COVID-19 circulation in the surrounding community, the study observed.

Simulations found that 31% of infections and 31% of deaths would have been prevented by single rooms for all Ontario long-term care residents — but 30,000 additional private rooms would have been necessary for this to occur.

Research in the U.S. found that outbreaks were more likely when staff members commuted from neighborhoods with high COVID-19 circulation — and in large homes with more staff traffic, with high-occupancy rooms associated with large outbreaks. Nursing homes that were less crowded, such as those built on the Green House model, had better outcomes and lower hospitalization costs, the study noted.

“The fact that smaller homes not only support better resident outcomes but are more resilient against infectious outbreaks should prompt policymakers to reimagine LTC infrastructure in a post-pandemic world,” the authors wrote.

Design features of the built environment for long-term care “that promote greater multiplicity and comingling of viral vectors — staff or residents — are strong determinants of the risk and extent of outbreaks,” according to the study; investing in smaller LTC units could minimize those vectors in addition to supporting better resident outcomes.

“However, excessive down-sizing may leave residents vulnerable to situations similar to those reported by small Italian LTC homes, as in the United States where outbreaks led to critical staff shortages,” the study authors added. “The solution may lie in architectural approaches that distinguish small-scale living from small-scale housing, using uncrowded and home-like residential spaces. Such infrastructure must be supported by dedicated staff embedded in a responsive organizational structure sufficiently large enough to ensure adequate staff coverage and to share operation resources.”

Those points echo calls from across the nursing home world to invest in better staffing and smaller, more homelike setups for nursing homes.

The authors of the JAMDA study went one step further.

“Any new large-scale developments based on clearly unhealthy institutional architectural designs should be strongly discouraged,” they wrote.