July 16, 2020
Plaintiff Lawyers endeavor to put nursing homes, long term care facilities and other like kind residences on trial, seeking to show that these facilities seek to cut costs for financial gain, all at the risk of sacrificing the quality of care of their residents. Now in the COVID-19 era, we have all heard in the news that as many as 50% of the deaths have occurred in nursing homes. There has been much discussion in the Florida Plaintiff’s Bar that COVID-19 requires owners and operators to spend even more money to ensure their residents are kept safe. When looking backward, should there be a death or other significant health consequence, Plaintiff lawyers will surely be focusing upon whether owners have spent money to protect their residents, and will be alleging not enough money was spent to do so to establish liability arguments.
People 65 and older are at higher risk for COVID-19, as are people with chronic medical conditions such as heart disease, diabetes, kidney disease and respiratory illness. Both groups are heavily represented among the nation’s 1.3 million nursing home residents. That concentration is a key reason why 1 in 5 U.S. deaths from COVID-19 have occurred in nursing homes and other long-term care facilities, but it’s not the only one. Some nursing homes conditions can exacerbate the spread of the disease:
shortages of coronavirus tests
shortages of or lack of access to personal protective equipment (PPE) such as masks and gowns
necessary and frequent physical contact between residents and staff
employees who work in multiple facilities, increasing chances for exposure
residents sharing rooms
transfers of residents from hospitals and other settings
These factors make nursing homes potential breeding grounds for viral and bacterial diseases, especially given chronic problems with infection control that predate the pandemic.
The Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) have issued guidelines on reducing the spread of COVID-19 in nursing homes. Facilities have been instructed to:
strictly limit visitation
suspend communal dining and group activities for residents
screen residents daily for fever and other COVID-19 symptoms
screen anyone entering the building for symptoms and observe flexible sick-leave policies for staff members
require staff to wear masks
If the disease is identified at a nursing home, the federal agencies urge the facility to restrict residents to their rooms; require health care staff to wear gowns, gloves, eye protection, and N95 or medical masks; and treat suspected and confirmed COVID-19 patients in a designated area, away from other residents. The CMS is requiring facilities to promptly alert residents, their families or representatives, and the CDC about new COVID-19 cases. The agency is also posting data, updated weekly, on coronavirus case counts at the national, state and individual nursing home level, and in May it announced tougher rules on infection-control inspections and enforcement.
Who can visit a nursing home?
Nursing homes and other senior-living facilities are effectively in lock-down, with entry restricted to essential staff, health care workers and vendors. Under CMS guidelines, outside visitors can come only in “compassionate care situations,” such as when a resident is near death. The CMS issued recommendations on May 18 aimed at helping state and local authorities determine when and how to resume visitation, but it will likely be some time before that happens. Some states are exploring outdoor-only visitation as a transitional step, as studies have shown the risk of coronavirus transmission is considerably lower outside. Indeed, one facility in Miami is arranging “drive by” visitation.
In the meantime, the best way to “see,” check on and observe residents and living conditions during this period is through video-chat and conferencing platforms like Zoom, FaceTime and Skype. Phone calls are another option to speak with residents, and offer emotional support. Isolation “can have very real and serious health impacts” for nursing home residents. Virtual visitation is likely to become the norm it seems. Support of loved ones is best accomplished by staying informed about what’s going on at their facility. Identify a point of contact on staff for questions and concerns.
Will the nursing home tell if people there are infected?
The CMS has announced it will require nursing homes to tell residents and their families or representatives within 12 hours if a COVID-19 case is confirmed on-site. The information must also be reported to the CDC. Some states, including Michigan, Illinois, New Jersey, California and Florida, have announced plans to name nursing homes with cases, but not all states are doing so. Greater transparency and accountability will lessen the likelihood of litigation for violations of the standards of care, and the Patient’s Bill Of Rights.
How are nursing homes regulated?
They are regulated by the federal government, specifically the Centers for Medicare & Medicaid Services, in collaboration with the states. State survey agencies conduct inspections of nursing homes on behalf of the CMS to check that they comply with federal laws and standards in areas such as staffing, hygiene, record keeping, and residents’ care and supervision. Facilities must be deemed compliant to be certified by the CMS and eligible for payments from Medicare and Medicaid. State surveyors also ensure compliance with state laws, statutes and rules. Last year, the CMS proposed rolling back what it deemed “excessively burdensome regulations” on nursing homes. The proposals, which have not yet been finalized, include relaxing rules on documenting grievances and investigations; requiring facilities to conduct assessments of staff and resource needs every two years, rather than annually; and allowing them to use consultants for infection prevention rather than hiring at least one part-time staff member for that purpose. Further deregulation will likely increase the “policing” by the Plaintiffs’ Bar, especially where attorneys’ fees are available to the prevailing party, through fee shifting statutes.
What if one has a complaint or concern?
First, communication and documentation are key. Learn as much as one can about the situation and have specific questions ready. If the facility is not responsive, reach out to your state’s long-term care ombudsman. Ombudsmen programs were established by the federal Older Americans Act in all 50 states, plus the District of Columbia, Puerto Rico and Guam, to address problems related to the health, safety, welfare and rights of residents of nursing homes and long-term care communities. Staff and volunteers at ombudsmen offices work to advocate for residents of long-term care facilities.
What is nursing home residents’ Bill Of Rights?
The CMS has a list of residents’ rights and protections under federal and state laws. Broadly speaking, these include the right to:
be treated with dignity and respect
be free from abuse, neglect and discrimination
have friends and family visit and participate in your care
take part in activities
make complaints without fear of punishment
receive proper medical care
have a doctor, family member or legal representative notified of changes in your condition or treatment
Keep in mind that state statutes on resident rights often go beyond federal rights. But rights related to visitation and activities are being restricted as part of efforts to curb the spread of COVID-19. The National Consumer Voice for Quality Long Term Care, an advocacy group that focuses on care issues, has a fact sheet on how the pandemic is affecting rights and rules in nursing homes.
Should a loved one be removed from a nursing home?
There is no simple answer as some individuals and families may decide that it makes sense for a spouse, parent or other loved one to come home during the pandemic, particularly if there are COVID-19 cases at the facility. But the reality is that some nursing home residents have medical or other needs beyond what can be provided at home. Here are some questions to consider:
How is the facility handling the coronavirus? For example, are residents and staff being tested? Are there confirmed cases among them? Do staff have PPE? Are staffing levels adequate?
What type and level of care does your loved one need, and are you able to provide it?
Is in-home care available during the pandemic?
Can your home accommodate a loved one with mobility issues or dementia? For example, is there a ground-floor bedroom if they can’t use stairs, or ways to guard against wandering?
Will your loved one be able to return to the nursing home? Many residents rely on Medicaid to help cover their long-term care costs, and leaving a facility can affect eligibility.
What about other long-term-care facilities, like assisted living?
Many assisted living facilities and senior care communities have implemented lockdowns and other restrictions to combat COVID-19. The CDC has issued recommendations for assisted living that mirror much of its guidance for nursing homes on controlling the disease, including no outside visitors or group activities and regular screening of staff for symptoms.
Unlike nursing homes, however, assisted living facilities are generally not subject to federal oversight. For example, the CMS rules on disclosing COVID-19 cases to residents and family members do not apply to assisted living facilities. They are licensed by the states, many of which have not issued disclosure orders, and regulation varies by state.
We at Shendell & Pollock have handled numerous bodily injury and wrongful death cases throughout Florida, New York and New Jersey, with over 30 years of experience. If you would like to discuss this alert or any concerns regarding defense of legal malpractice claims, contact Gary R. Shendell at firstname.lastname@example.org.
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