Outbreak of Untreatable, Drug-Resistant Super-Fungus Unnerves Experts in Two Major US Cities

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As the delta variant of Covid-19 races through populations and consumes government and media resources, the Centers for Disease Control and Prevention (CDC) announced discovery of multiple instances of Candida Auris that appear to be resistant to all medicines in two health institutions in Texas and a long-term care facility in Washington, D.C.  According to researchers, the deadly, difficult-to-treat fungal infection spreading through nursing homes and hospitals across the United States is becoming even more dangerous. For the first time, the fungus, Candida Auris, has proven to be "utterly impervious" to all existing medication in several cases.

C. Auris, is a hardy yeast infection first found in Japan in 2009, and it is spreading rapidly throughout the globe.  During the coronavirus pandemic, federal health officials believe the disease spread more quickly and even farther, with overburdened hospitals and nursing homes unable to keep up with the surveillance and control procedures needed to manage local outbreaks.

According to the CDC's recent study, at least five out of over 120 cases of C. Auris were resistant to therapy.  The CDC did not name the facilities where the novel infections occurred. Still, health officials said there was no apparent link between the outbreaks in Texas at a hospital and a long-term care facility that shared patients and in Washington, D.C. at a single long-term care center. Between January and April, epidemics occurred.

According to the C.D.C., about a third of infected patients died within 30 days, although officials said it was unclear if their deaths were caused by the fungus because they were already "critically ill."

The CDC has discovered more than 2,000 Americans colonized with C. Auris - meaning the fungus was found on their skin - during the last eight years, with most cases centered in New York, New Jersey, Illinois, and California. Approximately 5% to 10% of individuals infected with the virus develop more severe bloodstream infections.

The fungus is difficult to eradicate from healthcare institutions once it has established itself, sticking to cleaning carts, IV poles, and other medical equipment. While the yeast infection is usually innocuous to individuals in good health, it can be fatal to critically ill hospital patients, long-term care facility residents, and others with weaker immune systems.

Dr. Cornelius J. Clancy, an infectious diseases specialist at the V.A. Pittsburgh Health Care System, told NatureWorldNews, "If you wanted to conjure up a nightmare scenario for a drug-resistant virus, this would be it." "Immunocompromised patients, transplant recipients, and critically sick patients in the I.C.U. would all be at risk from an untreatable fungal infection."

While C. Auris has a reputation for being difficult to treat, researchers discovered five individuals in Texas and Washington, D.C., who had infections that did not respond to any of the three primary antifungal classes. In addition, Panresistance had previously been reported in three C. Auris patients in New York.

Still, health officials said the newly registered panresistant infections occurred in patients who had never received antifungal drugs,  Dr. Meghan Lyman, a medical officer at the CDC specializing in fungal diseases, told the New York Times.

"What's alarming is that the individuals at risk aren't just a tiny group of folks who have infections and are already taking these medications," she added.

The discovery of a panresistant C. Auris is a sobering reminder of the risks presented by antimicrobial resistance, from superbugs like MRSA to antibiotic-resistant salmonella. According to the CDC, such diseases sicken 2.8 million Americans each year and kill 35,000.

Transport Risk Includes Assault, Abandonment, and Identity Theft!

Two senior living caregivers are charged with abuse and exploitation for allegedly stealing a resident’s identity and debit card and then abandoning the resident on the side of the road on a “particularly hot day” in 2019.  Tavetta Lavetta Jones and Tekera Levine, employees of Whispering Pines Assisted Living in Pensacola, FL, were supposed to transfer the resident to sign bond paperwork. 

Florida Attorney General Ashley Moody announced the arrests and charges  following an investigation by the state Medicaid Fraud Control Unit. Reporting suggests that the assisted living facility at which the resident lived was wholly unaware of the fraud, or that the resident had been abandoned:

Kevin Wheatley, owner of Whispering Pines, said he is in “scramble mode” to keep his facility “running safely and smoothly,” adding that he only learned about the incident recently from the local news.  “There is a certain amount of trust you have to put in your staff,” Wheatley told McKnight’s Senior Living. "If that trust is broken, it’s obviously heartbreaking.”

Wheatley reportedly told McKnight's Senior Living that Jones is no longer employed by the community and Levine, “who has a stellar reputation in the caretaking community,” is on administrative leave “until we can figure out what happened.” He said Levine maintains that she was not involved in the incident. 

Jones is charged with exploitation of an elderly person or disabled adult and criminal use of personal identification information. She faces up to 35 years in prison. Levine, a Whispering Pines manager, faces a charge of accessory after the fact and up to five years in prison. Both were arrested last weekend by the Escambia County Sheriff’s Office and released on a $5,000 bond each.  Both are entitled to a presumption of innocence.

According to the attorney general, the resident identified Jones and Levine as the employees who orchestrated the scheme. The resident also identified a black Volkswagen as the vehicle that Jones was driving the day the resident was abandoned on the side of the road.

Levine “gave varying accounts” about the incident and Jones’ involvement. Phone records placed both employees in the county where the resident was abandoned near the time that law enforcement responded to a 911 call from people who found the older adult on the side of the road. Phone records also placed Jones in the vicinity of ATMs where the victim’s debit card and personal identification number were used to access a bank account in August and September 2019.

Court Rejects State Effort to Exploit Power of Appointment in Irrevocable Trust for Medicaid

As a result of a recent holding, the State of Massachusetts was ultimately unsuccessful in its effort to exploit a somewhat common term in irrevocable trusts designed for Medicaid and governments benefits planning, and for broader asset protection planning, in order to make trust assets available for Medicaid.

Emily Misiaszek created an irrevocable trust, placed her house in the trust, and named her daughter, Patricia Fournier, as the trustee. The trust stated that its purpose was to manage Ms. Misiaszek’s assets to allow her to age in place, specifically to live in the community as long as possible. The Trust stated that the principal of the trust "should" be held until the termination of the trust, but it gave Ms. Misiaszek a limited lifetime power of appointment to appoint all or any portion of the trust principal to a nonprofit or charitable organization provided that she had no controlling interest in the charity. 

Ms. Misiaszek entered a nursing home and applied for Medicaid (called MassHealth in Massachusetts). The state denied her benefits, claiming that the assets in the trust were available because the trust permitted Ms. Misiaszek to appoint the trust principal to a charity.  Massachusetts argued that "charity," could include a nonprofit nursing home to pay for her care.  Because federal law  provides "if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual," Massachusetts considered the power of appointment a circumstance, thus making the trust assets countable.  See, 42 U.S.C. § 1396p(d)(3)(B)(i).  State law provides that "[t]he effect of the ['any circumstances'] test is that if the trustee is afforded even a 'peppercorn of discretion' to make payment of principal to the applicant, or if the trust allows such payment based on certain conditions, then the entire amount that the applicant could receive under 'any state of affairs' is the amount counted for Medicaid eligibility."

Ms. Misiaszek appealed, arguing that the assets in the trust were not countable. The state affirmed the denial, and Ms. Misiaszek appealed to court. The trial court reversed the state’s decision. The state appealed, arguing again that because the trust did not contain language expressly preventing transfers of principal to benefit Ms. Misiaszek, she could use her limited power of appointment to pay for her care.

The Massachusetts Supreme Judicial Court held that the trust is not an available asset, affirming the lower state court's decision.  Fournier v. Secretary of the Executive Office of Health and Human Services (Mass., No. SJC-13059, July 23, 2021). According to the Court, the trust did not contain any language allowing Ms. Misiaszek to benefit personally from any distribution of trust principal; rather, the trust reflected Ms. Misiaszek’s intent to preserve the principal for her children. The court ruled “that under the terms of her trust, [Ms.] Misiaszek's limited power of appointment does not allow her, in any circumstance, to appoint the trust principal for her benefit, and thus the trust principal is not ‘countable’ for purposes of determining her eligibility for MassHealth benefits.” Fournier, at p. 25.  

The Court noted that:

"'properly structured, [irrevocable] trusts may be used to place assets beyond the settlor's reach and without adverse effect on the settlor's Medicaid eligibility'). In short, for trust principal to be considered countable under the 'any circumstances' test, the terms of the trust must give the applicant a direct path to reach or benefit from the trust principal" [citations omitted].

Fournier, at p. 7.  

A power of appointment such as the one provided in Ms. Misiaszek's trust is often included in order to qualify the trust as a "Grantor Trust," under the Internal Revenue Code.  Why?  A Grantor Trust does not require a separate Taxpayer Identification Number, and is not required to file a separate tax return.  A power of appointment permits the use of an irrevocable trust to obtain an objective, such as shielding assets from creditors or protecting assets from spend down in the event of long term care need, without suffering some of the tax and administrative disadvantages of an irrevocable trust.  Typically,  exercise of the power of appointment is usually considered unlikely and unnecessary; it serves only to make the trust a more acceptable planning vehicle. 

 

Home Health Care Staff Shortages Threaten Health- Frustrates Aging in Place

This Blog has reported the threat staffing shortages pose to the long-term institutional care industry, its residents, and its patients.  Staffing shortages in the home health care industry present similar threats, both to the industry and to actual and prospective customers.  

There is a legal maxim that "Justice Delayed is Justice Denied."  In the long-term care and the health care industry there is no simple maxim that  warns that "freedom delayed is freedom denied," but there should be.  A shortage of home health care workers means that some seniors may be unable to safely return to their homes, and may, instead, be forced into institutional care alternatives otherwise avoidable.  This may seem an anomalous result, but it is real.  Seniors are transferred to institutions that are woefully understaffed every day.  

There is no compromise possible, however, for a family seeking return of their mother or father to a home when they cannot demonstrate adequate and sufficient support services.  The systemic choice is clear; it is unacceptable for a senior to be at risk in their own home, but acceptable if that risk is institutional.  The Trump Administration learned, for example, that there were nursing homes opened and operating, without a nurse.  Medicare did not, and to this day, does not prohibit the transfer of a patient from a hospital to a poorly staffed nursing home or assisted living facility!     

Aging in Place Planning is specifically designed to reduce the risk of unnecessary and avoidable institutional care.  Unfortunately, many seniors may need home health care workers for short periods of time following acute needs or hospitalizations in order to rehabilitate safely at home.  "Freedom," may be denied these seniors if there is no choice but institutional care.   

Kaiser Health News, published a story about the on-going shortage, entitled, "Desperate for Home Care, Seniors Often Wait Months With Workers in Short Supply."  Using Maine as an example, the article explains:

"The Maine home-based care program, which helps....more than 800 in the state, has a waitlist 925 people long; those applicants sometimes lack help for months or years, according to officials in Maine, which has the country’s oldest population. This leaves many people at an increased risk of falls or not getting medical care and other dangers.  The problem is simple: Here and in much of the rest of the country there are too few workers. Yet, the solution is anything but easy."

Katie Smith Sloan , CEO of Leading Age, which represents nonprofit aging services providers, told Kaiser that the workforce shortage is a nationwide dilemma:

 “Millions of older adults are unable to access the affordable care and services that they so desperately need,” she said at a recent press event. State and federal reimbursement rates to elder care agencies are inadequate to cover the cost of quality care and services or to pay a living wage to caregivers."

This shortage was not unexpected.  Kaiser reported that "[f]or at least 20 years, national experts have warned about the dire consequences of a shortage of nursing assistants and home aides as tens of millions of baby boomers hit their senior years." President Biden even included funding for home and community-based care in the infrastructure bill ("human infrastructure").

And here we are. 

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Filial Responsibility Rule Means Son, Not Father, Must Pay Legal Bill for Negotiating Medicaid Penalty Reduction

 

A Pennsylvania trial court has ruled that the son of a Medicaid applicant must pay an elder law firm’s requested fee for successfully negotiating a penalty period reduction because the son would otherwise be responsible for paying the nursing home under the state’s filial responsibility doctrine.   Coates, et al., v. Salmon (Pa. C.P., Mont. Cty., No. 2018-16878, June 23, 2021).

William Salmon, Jr., a lawyer, engaged the services of elder law attorney Andrew A. Coates and his law firm to pursue an appeal of an $86,786 Medicaid penalty that the Pennsylvania Department of Human Services’ County Assistance Office had assessed against Mr. Salmon's father when he applied for Medicaid nursing home benefits. During their initial meeting, Mr. Coates explained to Mr. Salmon that if the penalty were upheld, Mr. Salmon could be held personally liable to the nursing home for the shortfall in payment pursuant to Pennsylvania’s legal doctrine of filial responsibility. As his father’s agent under a power of attorney, Mr. Salmon authorized Mr. Coates to proceed.  Mr. Coates failed to provide Mr. Salmon a written statement of the fees he would charge.

Mr. Coates ultimately reached a settlement with the County Assistance Office to reduce the penalty from $86,786 to $18,380, a savings of $68,406.  Mr. Coates sent Mr. Salmon a bill for $6,465.89, reflecting an hourly rate of $325 and applying a 15 percent “professional courtesy” discount.  Mr. Salmon refused to pay and requested “something much more reasonable.”

On January 14, 2021, the Court of Common Pleas of Pennsylvania, Montgomery County, ruled that because there had been no written fee agreement, recovery must be by an action in quantum meruit.  Quantum meruit is a Latin phrase meaning "what one has earned." In the context of contract law, it means  "reasonable value of services performed."  

Mr. Salmon contended that any claim in quantum meruit could be asserted only against his father, and not against Mr. Salmon personally.  Mr. Coates and his firm countered that under Pennsylvania’s doctrine of filial responsibility, Mr. Salmon would have been personally liable for payment of his father's nursing home fees, making Mr. Salmon the beneficiary of Mr. Coates’ legal services and liable for payment. The court ruled in favor of Mr. Coates and his firm for $7,606.64, the amount Mr. Salmon would have owed without the professional courtesy discount. Mr. Salmon has appealed to the Superior Court and in the course of that appeal he filed a Statement of Errors with the Court of Common Pleas. 

The reason this case is interesting because it utilized the law of filial responsibility to reach what was, in the court's determination, an equitable result.  Ostensibly, the father's estate would have been unable to pay the obligation, since the father qualified for Medicaid.  Although the services were performed for the father, contracted for by the father through his agent under a power of attorney, the court used the law of filial responsibility to assign the responsibility for the obligation to the son.  The court even noted that the son understood that he would ultimately be responsible for the father's nursing home bill, and equating that to understanding that he would ultimately be responsible for the attorney's fee. 

The case is also instructive for another reason, and that is that legal contests have costs and sometimes reach unexpected results.  Mr. Salmon probably assumed that the most he could stand to lose was the amount of the bill submitted to him; that assumption would have been incorrect. The Court actually awarded a sum greater than the total bill submitted by the attorney.  Although the attorney extended a courtesy discount on the total sum, the Court, in its judgment, removed the courtesy discount entering judgment for the full fee.  Ouch!