New Developments

 

Coronavirus and Nursing Home Residents in Ohio

On March 11, 2020, the President addressed the nation and declared a national emergency due to the threat of the coronavirus. He stated various precautionary measures that were to be taken concerning closing of facilities and other restrictions. I will not discuss all of those but rather focus on restrictions related to nursing homes. All of these restrictions being announced at the federal level are permitted under the National Emergencies Act and implemented through the authority of the federal agency, the Department of Health and Human Services- Center for Medicare & Medicaid Services (CMS).

All the information herein is based upon available government pronouncements as of March 18, 2020. This situation changes every day so please check the websites referenced herein for current information.

The first very relevant event is the coronavirus outbreak in January in a nursing home (Life Care Center) in Kirkland, Washington. The virus spread rapidly with at least 27 deaths of residents being linked to the coronavirus. See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm?s_cid=mm6912e1_w This event will be foremost in the minds of all nursing home administrators and staff. It is certainly known by the CDC and CMS and strongly influenced their guidelines.

Center for Disease Control
https://www.cdc.gov/coronavirus/2019-ncov/index.html

The Center for Disease Control has specific recommendations for nursing homes. Their recommendations concerning nursing homes and other long-term care facilities state that they are not mandatory requirements or standards. Their recommendations are as follows:
▸ restrict all visitation except for certain compassionate care situations, such as end-of-life situations.
▸ Restrict all volunteers and non-essential health care personnel (e.g. barbers).
▸ Cancel all group activities and communal dining.
▸ Implement active screening of residents and health care personnel for fever and respiratory symptoms.
▸ They state that ill visitors and health care personnel are the most likely sources of introduction of the coronavirus into the facility. They recommend aggressive visitor restrictions and enforcing sick leave policies for ill health care personnel even before the virus is identified in the community or facility.
▸ They also state that these recommendations could be applied in assisted living facilities.

They state that decisions about visitation during an end-of-life situation should be made on a case-by-case basis which should include careful screening of the visitor for fever or respiratory symptoms. Those with symptoms should not be permitted to enter the facility. Those visitors that are permitted must wear a face mask while in the building and restrict their visit to the resident’s room or other location designated by the facility.

Center for Medicare & Medicaid Services (CMS)
https://www.cms.gov/About-CMS/Agency-Information/Emergency/EPRO/Current-Emergencies/Current-Emergencies-page

The CMS guidance states in part as follows:

▸ the nursing home should restrict visitation of all visitors and non-essential health care personnel except for certain compassionate care situations, such as end-of-life situations.
▸ They appear to allow each state to enact more restrictive provisions by stating: “If a state implements actions that exceed CMS requirements, such as a ban on all visitations through a governor’s executive order, a facility would not be out of compliance with CMS requirements.”
▸ It is further stated that residents still have a right to access the ombudsman’s program. This program provides for advocacy for a nursing home resident with any type of complaint or problem.

Prior to the issuance of this guidance, administrator, Seema Verma stated: “I’d like to pause to say a word about nursing homes, which have been top of mind for the task force from the beginning. ….. We fully appreciate that this measure represents a severe trial for residents of nursing homes and those who love them but we are doing what we must to protect our vulnerable elderly. Needless to say, the moment we believe these restrictions can be relaxed, we will do so.”

State of Ohio
https://coronavirus.ohio.gov/wps/portal/gov/covid-19/

The governor of Ohio has issued his own pronouncements concerning nursing homes. This is done through the Ohio Department of Health. The first order provided for restrictions similar to those stated by CMS above. However, the second order provided for a total ban on visitation to nursing home residents. This order filed on March 13 states in part:

▸ “No visitors of residents shall be admitted to any home, except for end-of-life situations.”
▸ The order also provides that a nursing home must allow residents to discharge from the nursing home at any time and, in accordance with applicable state and federal law, understanding that residents that then return to the nursing home while this order is in effect are subject to the directives concerning medical screening. In other words, nursing home residents are allowed to leave and return. However, they will be subject to healthcare screening upon return.

Nursing Home Reform Act (resident’s rights)

Nursing home residents are provided with a legal right to have visitors under the federal Nursing Home Reform Act. Ohio law also provides for a Bill of Rights for nursing home residents to receive visitors. The federal statute states that a nursing facility must permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives of the resident. The statute does not state any exception for reasons of health or safety. However, the declaration of a national emergency invoking the National Emergencies Act, permits these rights to be restricted or waived during this emergency. Nursing facilities of course still have all their workers coming and going every day to the facility. Their support services are necessary for the residents. However, visitations by family and other loved ones are just as necessary for the emotional support of the resident.

There are very good reasons for trying to protect nursing home residents who are more vulnerable to this virus than are healthier persons. There have already been at least 27 deaths in a nursing home in Kirkland, Washington as a result of the coronavirus. Although family and friends want to visit their loved one, they certainly don’t want to be responsible for introducing the coronavirus that might start an outbreak in the nursing home. This will be difficult for many residents to be cutoff from their loved ones. Some with dementia may not understand what is happening. Hopefully, nursing homes will be flexible and creative and assist with alternative methods of contact such as phone calls, Skype or other type of face time technology or just a visit to the window. Most aged nursing home residents are not very competent with technology and will need to have the devices supplied to them with assistance. Nursing homes will have to have sufficient supplies of needed technology for Skype or face time. The window visit will not be possible for residents in upper level floors or an interior window with no outside access.

How long will this go on? How long will families patiently wait while they can’t visit their loved one? I suspect that nursing homes may make some exceptions beyond simply the end-of-life situations. The CDC and CMS recognize a broader “compassionate care” exception than the Ohio Governor who has enacted a total ban on visits except if the resident is dying. As this situation continues, I hope our Governor will realize that it is compassionate to allow limited visitation with medical screening so our loved ones are not deprived of the needed love and attention from their family and loved ones. We need to balance these reasonable restrictions to protect the residents with their need for contact with their family and loved ones. This balance will change on a day to day basis as the state of the coronavirus changes in the United States. I hope that the current national and Ohio ban will at an appropriate time be changed as circumstances become more favorable.

 

2019 Update of Ohio Medicaid Figures

Click here  to see 2019 Medicaid figures on our “Ohio Medicaid” page.

Ohio Transfers to Minors Act

 

The Ohio Transfers to Minors Act was amended effective 4/6/17 to permit an extension of the age of 21 to 25. However, this must be specified in the governing document (e.g. Will) creating the custodianship for the minor. Many persons felt that age 21 was too young for most persons to be receiving any substantial inheritance from an estate. Age 25 is thought to be a more mature and appropriate age for the maximum limit of a custodianship arrangement. Of course, the other and better option in planning for minors who might receive an inheritance is use of a trust. A trust can specify any age for full distribution out of trust to the beneficiary, funds can be used for the support or education of the beneficiary as determined by the trustee and principal distributions can be staggered over a period of time (e.g. one third at ages, 25, 30 & 35). The trust option is simply more flexible and can be drafted to the desires of the estate owner.