The much-anticipated COVID vaccine has arrived. It is now rolling out to Florida’s nursing homes and assisted living residences. Some residents are already receiving inoculations. Long-term care facilities in Florida and around the country have been prioritized, having been hit brutally hard by the virus. Although less than 1% of the American population resides in long-term care facilities, 40% of all COVID-related deaths have occurred in them, according to Atlantic magazines’ COVID tracking project.
Walgreens Pharmacy will be creating inoculation centers at many Florida facilities. It sounds like it should be smooth sailing from this point, but there are several legal and logistical concerns to be addressed going forward, particularly in view of the speed with which this massive operation is unfolding. If you have a loved one residing in long-term care, you should be aware of these issues.
The COVID Vaccine Isn’t Mandatory, but Consent Is
The medical community has cheered the arrival of the COVID vaccine. Based on a study of 44,000 people, including the elderly and those susceptible to other health problems, the FDA has determined that the vaccine is safe and 90% effective. The American Health Care Association is encouraging all nursing home residents to be inoculated by March 1. That said, some people are skeptical. A recent Associated Press poll reveals that one quarter of those polled will reject the vaccine, and an additional quarter are not sure. Says Michael Dark, an attorney with the California Advocates for Nursing Home Reform: “This is a highly politicized environment, not only with respect to vaccines but also over the existence of the virus itself. It’s not hard to imagine disputes arising within families.”
The COVID vaccine is not mandatory, and Florida statutes give residents the right to accept or reject medical treatment and medication, including vaccines. If your loved one is mentally competent, it will be his or her choice to accept or reject the vaccine. However, nearly half of all long-term care residents are cognitively impaired to some extent, and incapable of giving informed consent. If that is the case with your loved one and he or she has a valid health care surrogate, the surrogate will be contacted so that consent can be secured. Under Florida law, only one health care surrogate may make decisions for an incapacitated person (although back-up agents may be named in the surrogate document.) Therefore, even if family members or other parties disagree over whether the resident should receive the vaccination, the decision ultimately rests with just one person: the surrogate.
Family Disagreements Could Arise about the COVID Vaccine
But what happens if the resident does not have a valid health care surrogate? Suppose, for example, Mrs. Smith has a health care surrogate naming her husband as her agent. He has passed away, and she never named backups, or her backups are also deceased. In this and similar cases, the Florida health care proxy statute (765.401) applies. That could open the door to multiple family members becoming involved in the decision-making process, and increase the chances of family disagreements. Note items (c) and (e) in the following descending order of proxies who under Florida law have decision-making authority:
- The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
- The patient’s spouse;
- An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
- A parent of the patient;
- The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
- An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health and religious or moral beliefs; or
- A close friend of the patient.
Another potential issue that may arise: what happens if the resident is only mildly cognitively impaired?
Is lucid some of the time? Suppose the patient wants the vaccine but the surrogate or proxy are opposed to it, or vice-versa?
Get the Facts
Pfizer and Moderna, manufacturers of the currently available COVID vaccines, are providing comprehensive fact sheets for the public. The safety and effectiveness record are very good. On the other hand, the fact sheets note that the FDA has made the vaccine available for emergency use, which is less than a full-throated FDA approval. Some experts are concerned that residents, as well as their surrogates and proxies, may not be able to fully understand the information provided. They find it unlikely that facility staff, stretched as thin as they are right now, will have the time to spend with patients and families to answer all their questions thoroughly. “It’s very important for the frail elderly not only to ensure that they are understating the vaccine that they’re getting but also that their family members do” says Nancy Messonnier, director of the CDC’s National Center for Immunization and Respiratory Diseases.
We suggest that your do your own research on the coronavirus vaccines using reputable sources, and talk to your doctor. Then when you have to decide about the coronavirus vaccine, for yourself or for your loved one-you will feel confident in your decision.
Talk to Your Elder Law Attorney and Elder Care Coordinator
Everyone-not just residents of long-term care facilities-should have a valid health care surrogate designating who they want to make their health care decisions if they are unable to do so. Now more than ever it should be kept updated. Contact us and we can assist you with this important planning.