Nursing homes, rehabilitation centers, and other long-term care facilities are inherently susceptible to COVID-19 for a number of reasons. Residents live in close proximity to one another, creating a significant transmission risk. Staff members not only move between rooms, but they often work in different nursing homes, creating another potential risk of spread. To make matters worse, residents are more suseptible to severe COVID-19 complications—and death—because they're elderly and/or have chronic health conditions.
According to data reported by the Centers for Medicare & Medicaid Services ("CMS"), there were about 43,000 deaths in nursing homes from COVID-19 as of July 26, 2020. However, this number is likely a significant underestimate, in part due to the lack of comprehensive data from some states and the federal government. Also, the CMS numbers don't include deaths in other long-term care facilities.
According to an independent database compiled by the New York Times, at least 62,000 residents of long-term care facilities for older adults had died of COVID-19 by the end of July 2020—more than 40% of the U.S. death toll from the disease.
As Medicaid providers, nursing homes are bound by federal law. Under normal circumstances, nursing homes are routinely surveyed by federal regulators to ensure they are in compliance with federal law, including adherence to infection control standards. In March 2020, however, CMS suspended all routine nursing home inspections in order to prioritize response to complaints alleging "immediate jeopardy" and infection control concerns.
In response to recommendations from CMS and the Centers for Disease Control & Prevention ("CDC"), nursing homes have restricted entry by visitors and non-essential healthcare professionals. Therefore, family members and friends of nursing home residents who typically are able to keep a watchful eye over their loved ones may no longer be permitted to visit.
Ultimately, COVID-19 has resulted in reduced oversight for nursing homes. This is worrisome especially since, according to a recent study conducted by the Government Accountability Office, a federal watchdog agency, 82% of nursing homes in the United States were cited for infection prevention and control deficiencies from 2013 to 2017.
In one potentially bright spot, the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorized funds to nursing homes to help them address critical needs connected to COVID-19, including enhanced infection control, increasing testing, and hiring additional staff.
Although nursing home oversight is presently compromised, there are still measures you can take to help ensure that a facility is properly caring for a resident and has implemented appropriate infection control measures.
Phone, Text Messaging, E-mail, Video Chat. First, stay connected with the resident via phone, text message and/or e-mail. Ask the resident pertinent questions regarding signs of illness and whether the nursing facility is providing all basic needs, including food, hydration and any necessary medications. Use of video chat technologies is also beneficial so you can physically see the condition of the resident and his or her surroundings. It may be helpful to seek the assistance of the nursing home to facilitate communication with a resident.
Remember, staying in contact with a loved one is important not only to ensure that the person is receiving proper care, but also for the resident’s emotional health. Indeed, residents may be experiencing increased loneliness and social isolation due to restricted visitation and other infection control measures such as cessation of group activities and communal dining.
Contact the nursing home. Next, regularly speak to nursing staff and facility administration to receive updates regarding the resident’s daily care and health status. Do not be afraid to ask about the facility’s infection control measures and any COVID-19 cases there. Be aware that nursing homes are obligated, as a matter of federal law, to:
You can ask whether the facility has implemented key infection control recommendations from the CDC and CMS, some of which include:
If you suspect that a resident is being abused or neglected, or that a facility has failed to implement appropriate infection control measures, you can:
Even though we are in the midst of a crisis, nursing home residents still have legal rights that must be respected and upheld. To the extent a resident has contracted COVID-19 and suffered injury or death due to a nursing home's substandard infection control procedures and/or failure to provide adequate care, you can initiate a civil lawsuit against the facility alleging that its actions fell beneath the acceptable standard of care.
It is important to be aware that many states have enacted immunity laws protecting nursing homes against liability from coronavirus-related personal injury, medical malpractice, or wrongful death lawsuits. As of early August 2020, 26 states had enacted some sort of liability shield, and industry lobbyists continued to push for more protection at both the state and federal level. At the same time, one of the earliest states to enact this type of measure—New York—retreated partially from its blanket immunity for all nursing homes and other health care facilities. Under the amended law, the protection applies only when facilities are actually diagnosing or treating COVID-19.
The language of these immunity provisions varies by state. For the most part, though, the provisions do not protect nursing homes that have engaged in "gross negligence." It's unclear exactly how state courts will interpret what constitutes "gross negligence" in the age of COVID-19, and what the applicable standard of care is during these unprecedented times. Also, keep in mind that state and federal recommendations, regulations and standards around COVID-19 are subject to change given the rapidly shifting pandemic landscape.
If you are considering legal action, you should consult an attorney who handles nursing home abuse and neglect cases.