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Protecting the Elderly: Coronavirus and Nursing Homes

The daily headlines are filled with horrific stories describing hundreds of coronavirus deaths at nursing homes across the country.  The most vulnerable in the country are the elderly and those with underlying health issues.  Nursing homes, by their very nature, house those who are in fact the most susceptible to COVID-19.

Despite the fact that nursing homes provide care to the most vulnerable, Federal, State and local authorities are not doing enough to protect their residents.

Nursing home owners and administrators claim that leadership from the Federal government is extremely weak because of a longstanding culture of adversarial relationships.  The industry sees the Centers for Medicare and Medicaid Services (CMS) focusing on “inspect, identify weaknesses and punish” rather than providing support and guidance.  John R. Grace has operated nursing homes for more than forty years:  “We are the stepchildren in the healthcare systems and serve the forgotten generation.”

There has been more public discussion about how to disembark people from cruise ships than how to protect nursing home residents; move residents out of infected nursing homes into field hospitals or back to their homes with necessary attendant care.

Nursing homes desperately need priority access to personal protective equipment (PPE) and COVID-19 testing to provide safe care in the coming months.  There is a shortage of face masks, eye protection, gowns and gloves to protect the elderly and those working in nursing homes.

Nursing homes have been unable to get enough protective gear and tests, in part because hospitals are getting the supplies first.  Stephen Hanse, the President and CEO of the New York State Health Facilities Association—New York State Center for Assisted Living, has pleaded for additional help.  Mr. Hanse asserts that the nursing home industry has been treated as a “second-tier priority.”  If the country is to stop the horrific carnage in our nursing homes, more resources need to be directed to this industry.

Although no one is in favor of unnecessary and expensive regulations, it is clear that the nursing home industry requires some regulations to protect the most vulnerable in our country.  It is also clear that some regulations need to be eliminated.

In July of this year, prior to the outbreak of the virus, CMS set in motion a plan to weaken the rules regulating the nursing home industry.  CMS moved to eliminate the requirement to have even a part-time infection specialist on staff.  Attorney Generals in seventeen states criticized the proposal calling it a clear threat to the “mental and physical security of some of the most vulnerable residents of the country.”  Even before the arrival of COVID-19, nursing homes averaged about 380,000 resident deaths each year as a result of infections.  With the arrival of COVID-19 this is not the time to eliminate regulations requiring infection specialists at nursing homes.

In March of this year New York added a new regulation specifying that a nursing home resident who is discharged from a hospital cannot be denied readmission to his/her nursing home just because the resident tests positive for COVID-19.  Common sense dictates that an elderly patient who tests positive for the virus when discharged should not be sent back to his/her nursing home.  A discharged patient with COVID-19 should not be allowed to return to the nursing home where it is likely that the other residents will become infected.  Dr. Michael Wasserman, president of the California Association of Long Term Care Medicine, recently stated:  “We have an obligation to our patients to draw the line.”  Increasing the number of COVID-19 positive residents in facilities–whether these facilities have patients with the virus or not—raises the risk of infecting the uninfected and dramatically increasing the number of deaths.  Advocates for the elderly have voiced strong opposition to New York’s policy, calling it “over-reaching, not consistent with science, and beyond all, not in the least consistent with patient safety principles.”

David Grabowski, a professor of Health Care Policy at Harvard Medical School, provides further evidence against New York’s policy:  “I would be surprised if even 10% to 15% of skilled nursing facilities in the U.S. could take a COVID positive patient and treat that patient safely while ensuring that other residents in the home are safe.”

Dr. Grabowski calls for establishing “centers of excellence” to care for patient recovery from COVID-19 and building temporary facilities in hot spots where the need for post-hospital services are likely to surge.

In New York, a field hospital is being built by the Army Corps of Engineers for recovering patients who don’t need acute care services.

Here in Massachusetts, the DCU Center has been set up to treat COVID-19 patients no longer in need of acute hospital care.  Partners Healthcare opened the Fourth Floor of the Spaulding Hospital for non-acute patients and will accept patients from a number of other Boston hospitals.  More money is needed to build and staff these facilities.

One of the goals of these field hospitals is to help COVID-19 patients recover so they can return to their nursing homes without bringing the virus with them.

Although most nursing homes are doing everything possible to protect the residents, it is astounding that other nursing homes have not implemented simple policies and procedures requiring workers to wear masks and wash hands.

Beginning in March, CMS postponed routine inspections and has been focusing solely on inspections related to infection control.  The CMS reports that one in three nursing homes did not follow simple handwashing guidelines.

In a minority of states, including Massachusetts, legislation has been enacted to protect healthcare workers caring for COVID-19 patients.  These laws and executive orders provide immunity to healthcare workers during the pandemic.  Although the constitutionality of these laws has not been tested by the Courts, the new laws do have exceptions for gross negligence or reckless conduct.  This means that a lawsuit can be brought against a nursing home for acts which are reckless or which amount to gross negligence.

While it is true that ventilator shortages or test kit shortages may be beyond the control of the nursing homes, the exceptions for gross negligence and reckless conduct insure that a nursing home employee who recklessly refused to wear a mask or wash his/her hands as he/she moved from room to room to provide aid to the residents will not be immune from liability.

Adding to the chaos is the fact that families and other professionals who advocate for nursing home residents, such as geriatric care managers and ombudsman, are currently prohibited from visiting with elderly residents.  Families are notified via phone that their loved one has died.  Families have no opportunity to say goodbye, or to ensure that their loved one has received adequate care at the end of his or her life.  Nursing homes have effectively been sealed off from the outside world with little to no oversight.

This lack of oversight can lead to reports, such as those in the news recently, about nursing homes not accurately reporting the numbers of COVID-19 cases and deaths in their facilities or failing to implement proper testing procedures.  As a result, CMS issued new guidance on April 19th requiring nursing home administrators to inform residents and their representatives within 12 hours of the occurrence of a single confirmed infection of COVID-19, or three or more residents or staff with new-onset of respiratory symptoms that occur within 72 hours.  Nursing homes must thereafter provide weekly updates to residents and their representatives disclosing the number of newly confirmed COVID-19 cases or new-onset respiratory symptoms.

It has been reported that nursing home deaths involving the virus make up one-fifth of our country’s body count.  This vulnerable population needs to be protected by regulations, oversight and in the case of gross negligence, reckless conduct or fraud, the protections of the civil justice system.

The new immunity laws also allow for lawsuits in the event of “fraud.”  In cases where nursing homes fail to disclose to a patient and his/her family that another patient has the virus, families who would have moved their elderly parent or grandparent out of the nursing home, if they had known that other residents were testing positive, may have claims based on fraud.

None of us should be allowed to conduct our personal or professional lives as if we have no responsibility to those that we live with, work with, care for or provide services to.

Hopefully, federal, state and local authorities will begin to pour more money into our nursing homes to protect those most vulnerable.  Nursing homes are land-based cruise ships and as one commentator noted, being in an infected nursing home is like being on the Titanic without a lifeboat.

Every nursing home needs a clear plan of action to avoid systemic failure.  Experts claim that when the virus is introduced into a nursing home and the resident is not properly treated and isolated, fatality rates of 30%, 40% and 50% are likely.  If basic safety measures are not undertaken, then conditions in nursing homes will continue to decimate the elderly and the sick.  The nursing home industry needs more resources and this population should be treated as a priority.

Edward “Ted” Bassett is the Chair of Mirick O’Connell’s Personal Injury Practice.  Ted has over 35 years of experience representing plaintiffs in wrongful death and catastrophic injury cases.  This article was co-authored by Lisa M. Neeley, a partner at Mirick O’Connell and a member of the National Academy of Elder Law Attorneys.  Lisa is one of the Commonwealth’s leading experts in the areas of Elder Law, Estate Planning, Long-Term Care and Medicaid Eligibility.

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